A federal judge has ruled that a variance granted to dischargers of nitrogen and phosphorus approved by the state of Montana and the Environmental Protection Agency partially violates the Clean Water Act.
U.S. District Court Judge Brian Morris issued his order Monday in favor of the group Upper Missouri Waterkeeper in its case against the EPA and the Montana Department of Environmental Quality. Treasure State Resources Association, Montana League of Cities and Towns and National Association of Clean Water Agencies are also listed as intervenors on the case.
In 2015, DEQ adopted and EPA approved “base” standards for the nutrients nitrogen and phosphorus to meet water quality standards for the protection of Montana’s waterways. At the same time, DEQ adopted a 20-year variance from the base standards based on the cost and feasibility to individual dischargers. At the time, the state said the variance would allow time to work toward lower discharges with a review every three years.
DEQ identifies reverse osmosis as the only technology available that could meet the base standards, but the systems are expensive for larger municipalities and likely cost-prohibitive for smaller ones.
In 2016, Upper Missouri Waterkeeper sued over the variance. At the same time, the agencies adopted an amended 17-year variance that provided tighter discharge standards.
Those newer standards currently apply to 36 municipalities across the state, but did not change the core contentions of the lawsuit. The group argued that the Clean Water Act does not allow consideration of economic impacts and that the variance essentially replaces the base standards without a path to reaching levels necessary to protect waterways.
Morris ruled against Upper Missouri Waterkeeper on its first argument, finding that the Clean Water Act does allow consideration of economic impacts in accepting variances.
But Morris agreed with the group that the 17-year timeline allowed municipalities to only “meet the highest attainable condition,” and does not set out timelines that lead to compliance with base standards.
He provided the example of Bozeman, which currently meets the newer variance standards and could receive a variance towards meeting the base standards. But in another scenario, the city of Whitefish does not currently meet the variance standards and could theoretically take the full 17 years to meet them without a path to meeting the base standards.
“The (Clean Water Act) does not contemplate the ability of a state to adopt a variance from the variance,” Morris wrote.
Upper Missouri Waterkeeper Executive Director Guy Alsentzer applauded the decision.
“The law requires discreet progress to meet water quality standards, and the judge said ‘show me how you’re going to get there,’” he said.
Alsentzer characterized the variance as lacking transparency with “next to no progress made” after three years toward meeting higher water quality standards. The standards and making steady progress toward meeting them are important in reducing the pollution currently being discharged, he said.
“They gave the 20-year gap with a weak variance standard that we know doesn’t protect our waterways,” he said.
The U.S. Department of Justice said it was reviewing the court’s opinion and had no further comment.
DEQ was also reviewing the opinion and has 60 days to respond to the court, spokeswoman Kristi Ponozzo said.
"The decision upheld variances as being consistent with the Clean Water Act," she said. "It also upheld Montana's analysis and justification for the needs for the nutrient variances.
"We are still reviewing the decision and what it means for the existing variance."
In a 2015 Independent Record story, DEQ officials described a phasing-in of more stringent nitrogen and phosphorus standards to soften the financial burden of controlling the pollutants.
“The new standards are low and hard to achieve economically, so we’re banking on more cost-effective technologies to reach those numbers,” George Mathieus, Planning Division administrator at DEQ, said at the time.
In 2009, the Legislature gave DEQ authority to grant variances for pollution standards when limited technology or economic impacts precluded a polluter from meeting them. Nitrogen and phosphorus rank among the top 10 most common types of water pollution in Montana, often leading to higher plant growth that can negatively impact aquatic life.
On Tuesday, Alsentzer said that while the group did not weigh in on DEQ’s determination that reverse osmosis is the only technology that could meet base standards, problems such as these often breed solutions and new technologies through the free market. But, "Montana and EPA never took steps to force the market to figure out how to do business in a better, cleaner way, to do more to protect fisheries," he said.
Morris’ order, recognizing that municipalities are at various stages of compliance, requires the parties to confer and submit briefs to the court on potential remedies that includes timelines for meeting the variance standards.