Waterkeeper asks EPA to review Montana’s new water standards

Since narrative standards on water quality don’t incorporate vital statistics, the state can’t be preventative and has to wait until problems show up before it takes action.

A water protection group is asking the federal government to step in after the Montana Legislature walked back the state’s water quality protections on nutrients related to algal blooms.

On Monday, Bozeman-based Upper Missouri Waterkeeper filed a petition asking the U.S. Environmental Protection Agency to review Montana’s new nutrient standards under the Clean Water Act.

The nonprofit organization contends the reduced standards for nitrogen and phosphorus passed in Senate Bill 358 fail to protect Montana’s waters.

“The EPA has an obligation under federal law to step in to protect Montana’s water resources when our decision makers won’t,” said Guy Alsentzer, Upper Missouri Waterkeeper executive director in a release. “Gov. Gianforte and state Legislators sold out our rivers to polluting special interests, putting bottom lines and profit margins before science. Now, it’s the EPA’s duty to uphold the law and protect Montana’s keystone waterways and the ecological and human communities they support.” 

Before this year, Montana was one of 23 states that had criteria limiting the amount of nutrients, namely nitrogen and phosphorus, allowed to pollute streams and lakes. In fact, Montana was hailed as a national water quality leader in 2014 when it established stringent numerical standards for effluent nutrients after seven years of data analysis and public meetings.

But that landed the state in court, defending its standards. Acknowledging it would take time for wastewater dischargers to meet the requirements, the state enacted a 20-year variance in 2017. Upper Missouri Waterkeeper tried to oppose the variance.

Standards based on numeric criteria keep rivers safe, because if monitoring results show that nitrogen or phosphorus concentrations exceed set limits in a waterbody, corrective action can be taken.

The corrective action to reduce the amount of nutrients in the water depends on the source of the nutrients. One main source is fertilizer, which enters streams due to runoff from agricultural fields and city stormwater. Using less fertilizer and controlling stormwater discharge into streams can reduce these sources.

Another source of nitrogen is animal waste from feedlots and human waste from excessive numbers of septic tanks or antiquated sewer systems. One remedy would be installing sewer systems that process waste better but that can be expensive for smaller towns.

Now, however, Senate Bill 358 eliminates numerical limits and returns the state to using narrative or descriptive standards. Polluters prefer narrative criteria, which are general statements that describe a desired goal, such as waters being “free from” or “not dominated by” pollutants like oil or algae.

A Montana State University analysis concluded numeric standards “are essential to effective, consistent, repeatable, defendable monitoring,” which is essential for decision-making. Narrative standards have a slew of disadvantages according to the study, including being hard to interpret, subjective, lacking consistency and almost impossible to enforce, all of which benefit polluters.

Since narrative standards don’t incorporate vital statistics, the state can’t be preventative and has to wait until problems show up before it takes action.

Montanans have yet to know what the descriptive standards will be. A committee has a year to develop the new rules. After that, the law says the state would use adaptive management to modify the standards as needed.

Even so, the law is effective immediately, and numeric standards are repealed. That’s one of the things the Upper Missouri Waterkeeper is challenging. Under the Clean Water Act, any revision to a state’s water quality standards requires EPA approval before going into effect. So Montana appears to have jumped the gun.

SB 358 also reduces the state’s oversight by allowing for more pollution exemptions.

This could be a bad year to be without standards. With the summer predicted to be warmer than usual, excess nutrients combined warm water could lead to more algal blooms in lakes and streams. If you’ve seen the bright green layers covering the bottom of the Clark Fork River in late summer, those are algal blooms, and they’re occurring more often due to climate change.

Algal blooms are disastrous to aquatic life because massive colonies of algae can reduce the amount of oxygen in the water that other species depend on, such as trout and insects. Blooms can often lead to fish kills.

Algae that produce cyanotoxins can also be harmful to people, livestock and pets who swim in or use rivers and lakes for their drinking water. In 2017, there were 41 reports of algae blooms in Montana reservoirs and rivers and some killed livestock and sickened people and pets.

According to the U.S. Environmental Protection Agency’s most recent surveys on national water quality, nutrient pollution is a problem in more than one-third of lakes and about half of all rivers and streams. For that reason, the EPA is encouraging states to adopt numeric nutrient standards.

Some Montanans don’t want to have to wait until conditions are bad before action is taken. During Legislative hearings, outdoor businesses, conservation groups, and citizens overwhelmingly opposed SB 538 and legislators received 215 comments in opposition with 18 in support.

The Montana Petroleum Association, Montana Mining Association, the Montana Coal Council, the Treasure State Resources Association and the Montana League of Cities and Towns backed the bill.

The Clark Fork Coalition opposed the bill, saying numeric criteria have been key to protecting Montana streams.

“We know from experience on the Clark Fork River that numeric nutrient criteria are necessary to protect our river from chronic nutrient issues. Removing numeric nutrient criteria will result in excessive nitrogen and phosphorus pollution in Montana’s rivers, streams and lakes, harming human health, ecosystems, property values and our economy,” said Andrew Gorder, CFC legal director, in testimony.

The Upper Missouri Waterkeeper petition requests that the EPA respond within 90 days, based on Clean Water Act deadlines for the agency to act on water quality revisions enacted by states.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.