State environmental agency halts rewrite of water quality standards

Three years into a legislatively mandated effort to adopt looser standards for two nutrients abundant in Montana waterways, the state has halted rulemaking on the contentious effort.

Following a hearing on Monday at which stakeholders on multiple sides of the issue expressed displeasure with the Montana Department of Environmental Quality’s proposal, the agency announced it has no immediate plans to advance new water quality standards as required by a bill the Republican-controlled Legislature passed in 2021. Environmentalists described DEQ’s proposed rules as unscientific and unprotective, while sewer operators and industrial dischargers deemed them difficult to understand and financially and technologically unattainable.

“The pause in rulemaking will allow DEQ more time to consider the substantive comments received and means that the proposed rule package will not move forward to adoption,” the agency wrote in a press release this week.

“DEQ and the Nutrient Work Group have poured time and resources into getting this right,” DEQ Director Chris Dorrington said. “After more than 40 meetings over a three-year period, DEQ decided not to move the process forward to formal rulemaking.”

The nutrient standard revision was a product of Senate Bill 358, which sought to make compliance with the water quality standards the state adopted in 2014 more attainable and affordable for wastewater treatment plants and industrial operators such as refineries and mines.

“Nobody can meet the numeric standards that are in place without a variance,” Senate Bill 358 sponsor John Esp, a Republican from Big Timber, argued in 2021. “We can’t meet it now, or in the foreseeable future, with the technology we have today.”

Nutrient overloading in a river or lake can lead to toxic algal blooms, fish kills and a general deoxygenation of waterways that can compromise aquatic ecosystems. There are multiple sources of nutrients in waterways, including municipal and industrial wastewater, fertilizer and stormwater runoff. They can also occur naturally, and a limited amount of nitrogen and phosphorus supports proper ecological functioning.

SB 358 directed DEQ to do away with the “base numeric nutrient standards” — numbers that set objective limits for nitrogen and phosphorus, which impair one-third of Montana’s river miles. In its place, the Legislature ordered the agency to adopt subjective rules for nutrients such as the prohibition of introducing nutrients that would “create conditions that are toxic or harmful to human, animal, plant and aquatic life” or “create conditions that produce undesirable aquatic life.”

Environmentalists have described the shift to narrative standards as unscientific, reactive rather than proactive and inconsistent with federal laws such as the Clean Water Act.

Upper Missouri Waterkeeper Executive Director Guy Alsentzer, who has participated in the Nutrient Work Group throughout this process, told Montana Free Press Thursday that DEQ’s proposal was roundly rejected by the group’s members — albeit for different reasons.

Alsentzer argued that the now-shelved rule fails to mitigate the leading source of pollution in Montana waterways and was designed with “economic bottom lines” in mind rather than the rivers, streams and lakes that are a widely celebrated component of Montana’s outdoor economy and heritage.

He said he fears that DEQ’s decision to halt rulemaking may be “posturing” motivated by political pressure on the agency rather than a desire to uphold its regulatory duty.

“DEQ should have 100% shelved this — deep-filed it and never turned back,” Alsentzer said. “They’re following their political masters instead of doing what [federal] law requires.”

Alsentzer added that should the agency attempt to pass the proposed rules at a later time, it runs a “real risk” of the U.S. Environmental Protection Agency assuming authority for water quality permitting in Montana.

While Alsentzer criticized the rule for being insufficiently protective of rivers, the rulemaking proposal also found opposition from groups like the Montana Petroleum Association, the Treasure State Resources Association and the Montana League of Cities and Towns, which described it as too stringent. Those groups argued they have difficulty interpreting the rules and fear that the new rules would be overly expensive for the environmental benefits they would produce. 

During a meeting on May 21 of the Legislatures’ Water Policy Interim Committee, Matt Vincent with the Montana Mining Association said the DEQ-convened Nutrient Work Group has acted during the past six months in a way that is “anything but transparent, anything but inclusive.” He also argued the rules are overly deferential to federal agencies — i.e., the EPA — and vulnerable to being overturned, whether by judges or lawmakers.

In its detailed comments, the EPA flagged components of the proposed rule that could allow “possible degradation” of aquatic life. It noted that “months to years” of aquatic life degradation may occur under the state’s proposal before the agency would require the collection of data that may have helped prevent the degradation.

Throughout the rulemaking process, the numeric nutrient standards that the EPA approved a decade ago have remained in place, according to DEQ Public Policy Director Rebecca Harbage. 

Due to a law prohibiting state agencies from adopting, amending or repealing rules in the three-month period preceding a legislative session and the timelines associated with publishing proposed rules and receiving public comment on them, it is unlikely DEQ will advance new rules in 2024.

Gov. Greg Gianforte appointed Dorrington to lead DEQ in 2021. Late last week, Gianforte’s office announced that Dorrington will take the helm of the Montana Department of Transportation, effective July 1. Sonja Nowakowski, DEQ’s current air, energy and mining division administrator, will assume Dorrington’s position, also effective July 1. 

Asked Thursday if the personnel reshuffling was the result of frustrations surrounding the rule rewriting, Harbage said Dorrington “was asked to step into a leadership role at the Montana Department of Transportation to make good use of his skills and expertise at that agency.” 

“The decision was not related to the nutrient standards process,” she said.

Amanda Eggert is an environmental reporter for Montana Free Press, a Helena-based nonprofit newsroom, and can be reached at aeggert@montanafreepress.org.