Legislature Advances Bills Loosening Water Quality Standards
Opponents say it’s ‘Groundhog Day’ for nutrient, coal mining bills
By Amanda Eggert for Montana Free Press
The Montana Legislature is advancing a pair of bills that aim to weaken water quality standards, making it easier for wastewater treatment plants, industrial sites and coal mines to comply with environmental regulations.
Both proposals bear striking similarities to bills previous Legislatures passed, only to find that they were unenforceable given conflicts with federal laws.
House Bill 664 repeals numeric nutrient standards, giving wastewater treatment plants and industries that discharge nitrogen- and phosphorus-laden wastewater into Montana rivers more latitude to comply with Montana Department of Environmental Quality-administered regulations. It mirrors a 2021 proposal to replace numeric standards with narrative standards that encountered substantial federal — and subsequent state — headwinds despite garnering approval from the Montana Legislature and Montana Governor Greg Gianforte.
House Bill 587 redefines what constitutes “material damage” to water supplies outside the boundary of permitted coal mines. It resembles a 2023 standards-loosening bill federal regulators blocked last year, citing concerns about “vague and difficult to enforce” provisions that could ultimately “restrict Montana’s ability to protect its environment from pollution events and keep operators accountable for those pollution events.”
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Still, this session’s proposals have coasted through committee and floor votes. HB 664 and HB 587 cleared the House last month, and have gone up for hearings before the Senate Natural Resources Committee. As of April 8, the committee has not yet decided if it will forward the bills to the full Senate for review.
HOUSE BILL 664: THE ‘TIME TRAVEL’ NUTRIENT BILL
Representative Bill Mercer, R-Billings, said he is sponsoring HB 664 because the federal government “double-crossed” the state in the narrative-to-numeric nutrient standard transition.
Mercer outlined the years of discussion that preceded the adoption of numeric nutrient standards, which were legislatively passed and federally authorized a decade ago. He outlined agreements between the state and the federal government giving city and county wastewater treatment plants and industrial dischargers up to two decades to meet the stricter number-based standards that replaced narrative water quality standards, which were based upon more subjective criteria such as the presence of “undesirable aquatic life.”
“We were willing to go with numeric nutrient criteria, but we had to have … a glide path to get there,” Mercer said, referencing the availability of a 20-year variance. “The Legislature never would have gone for numeric criteria in the absence of variance authority because it would have put everyone out of compliance right away.”
After Mercer finished introducing the bill February 26, three proponents testified: DEQ Administrator Sonja Nowakowski, DEQ Water Quality Division Administrator Lindsey Krywaruchka and Trout Unlimited Conservation and Government Affairs Director Clayton Elliott.
Nowakowski said HB 664 would allow the Legislature to “time travel” to the period before its adoption of numeric water quality standards, thereby allowing the state to evaluate “individual, site-by-site variances” and bring the agency out of an extended period of permitting paralysis.
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During discussion of the bill, Krywaruchka elaborated on that permitting stand-still, explaining that a breakdown of a working group tasked with establishing narrative standards to comply with Senate Bill 358 has led the agency to “administratively continue” permits that have expired rather than reevaluating the terms of those permits.
“We’re not renewing permits. There are a lot of things we’re not doing in the agency because these standards have not been set, including submitting assessment methods to EPA for nutrients,” Krywaruchka said.
Elliott described himself as a “reluctant proponent,” noting his organization’s opposition four years ago to HB 664’s predecessor. He went on to describe the current state of affairs as “not sustainable” and HB 664 as “a step in the right direction.”
“I think it ends the uncertainty of where we’ve been, and it forces us to move forward, to issue permits and to figure out where we’re going to go from there.”
Elliott added that the state will probably face lawsuits “whichever direction you go.”
HB 664 opponents countered that the existing numeric standards are achievable, science-based and necessary to protect beneficial uses of Montana waterways.
Sarah Zuzulock, an environmental engineer who represented Northern Plains Resource Council in the numeric standard working group that dissolved last year without resolution, acknowledged that adopting new technologies to comply with numeric standards can be costly. That doesn’t justify a full-scale repeal, she argued.
“We can’t simply go back to what’s in statute from 2013. It’s not as protective of water quality. It’s not science-based. It’s not defensible,” she told committee members, adding that the numeric nutrient standards still apply under the Clean Water Act, the law Congress passed in 1972 to regulate pollution entering the country’s waterways.
Montana Environmental Information Center Deputy Director Derf Johnson cautioned that by repealing the existing standards, the state would move away from science-based standards toward “no man’s land.”
Environmental regulators put “a ton of science” into the numeric nutrient standards to protect the beneficial uses that undergird water quality regulations, Johnson argued. “What sort of standards will be in place once this is repealed?”
Kelly Lynch with the Montana League of Cities and Towns also testified in opposition to the bill, but for a different set of reasons. She pushed back on the notion that passing HB 664 would toss the nutrient-standard political football back to the EPA, arguing that the nutrient working group, which included industry, municipality and environmental stakeholders, needs to continue working toward a set of broadly applicable standards.
“Without the state continuing on that path, every town is going to be left on their own to defend their own permit,” she said. “We would like to see all of the parties stay at the table and continue to work on coming to some kind of a solution. And I know that doesn’t sound easy or fun, but I think that’s really the only pathway forward to get us out.”
During discussion on HB 664, Lynch told committee members that it would be “leagues cheaper” for public wastewater treatment operators — and therefore utility ratepayers — to work on reducing the decentralized sources of nutrient contamination such as septic systems and fertilizer runoff than it would be to make “enormous upgrades” in treatment technology.
House Majority Leader Steve Fitzpatrick, R-Great Falls, is sponsoring a proposal that aims to allow wastewater operators to reduce decentralized nutrient inputs that enter a watershed separately from the discharge pipes DEQ regulates. An amended version of House Bill 736 passed through the House on 82-17 and was voted through the Natural Resource Committee on April 7.
Art Hayes, Jr., who lives in the Tongue River Basin community of Birney, described DEQ’s lack of opposition to HB 587 in the House after the agency spent years defending its own standards in state and federal courts as a “slap in the face to Montana farmers and ranchers.”
HOUSE BILL 587: A SHOWDOWN BETWEEN THE COAL INDUSTRY AND AGRICULTURAL PRODUCERS
Representative Gary Parry, R-Colstrip, said he drafted HB 587 after the EPA rejected a proposal rewriting water quantity and quality impacts that constitute “material damage.” Under state law, coal mines are barred from causing material damage to beneficial uses of water, giving Montanans who live near coal mines a measure of protection from polluted or diminished water supplies.
After the EPA’s rejection of the original language proposed in 2023’s House Bill 576, DEQ modeled proposed language on existing regulations in place in Wyoming and West Virginia only to learn earlier this year that it still did not meet the Office of Surface Mining, Reclamation and Enforcement’s standards, Parry said.
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“Rather than continue to battle with the federal agency, HB 587 simply adopts language that OSM felt better satisfies their intent,” Parry told the Senate Natural Resources Committee April 4.
Passing HB 587 would allow the state to maintain “primacy” — initial oversight of — its coal program and continue pulling in federal funding to implement the DEQ-administered enforcement and reclamation program, he said.
“People are going to complain about water,” Parry continued. “They can complain, but we’re still using the federal standards, and that’s what this bill is doing.”
HB 587 strikes the existing definition of material damage, replacing it with a “quantifiable adverse impact from surface coal mining and reclamation operations on the quality or quantity of surface water or groundwater.” HB 587 is also written to apply retroactively, meaning that if it passes, any existing but still undecided claims brought by the impacted landowner will be evaluated through the new law.
Proponents included Parry’s former employer — Westmoreland, which operates the mine that supplies to Colstrip power plant with coal.
Westmoreland lobbyist Darryl James said the proposal doesn’t change water quality standards and that the company will still be responsible to uphold the Clean Water Act and the Surface Mining Control and Reclamation Act.
Other proponents included Rosebud County, the Montana Coal Council and the Montana Association of Oil, Gas and Coal Counties. They argued that coal is an important component of Montana’s economy and that aligning Montana’s definition of material damage with federal language removes ambiguity and reduces the likelihood of litigation.
Opponents argued that protecting water quality standards from saline-laden mine waste is “crucial” to agricultural producers in coal-rich regions of eastern Montana.
Art Hayes, Jr., who lives in the Tongue River Basin community of Birney, described DEQ’s lack of opposition to HB 587 in the House after the agency spent years defending its own standards in state and federal courts as a “slap in the face to Montana farmers and ranchers.”
“The DEQ should stand up and defend these standards and recognize the duty to protect Montana water and farmers and ranchers who rely on clean water for livelihood,” Hayes, Jr., said. “Farming and ranching is just as economically and culturally important to Montana as coal mining, if not more so.”
Bull Mountain Land Alliance Chair Tom Baratta built on that, referencing his experience living just outside the permit boundary of a longwall underground coal mine operated by Signal Peak Energy.
“I’ve witnessed permanent water damage to water sources, observed severe areas of subsidence and grieved with those who have lost their generational ranching operations — all due to mining activity,” he said, going on to describe the existing standards as “clear, fair and reasonable.”
Baratta then outlined his concerns with revisions to the standard proposed by the bill: that a landowner must demonstrate adverse impacts to their water supplies before the state will step in and that the state replaces its own, independent analysis with analysis performed by the companies it regulates.
“What sense does it make to the citizens of Montana allowing mining activity to go unchecked while these large, out-of-state corporations damage our land, destroy our water sources and push generational ranchers off the land, leaving us without a means to hold these corporations accountable for the damage they do?” he said.
Pat Thiele, who said he knows of four ranches near the Bull Mountain Mine forced out of business due to mining activity, described HB 587 as a “resurgent attempt to pervert a perfectly good law.”
“This new version of the bill is wasting your time and mine,” he said. “It has the same flaws as [HB] 576 from last session.”
In a mid-March conversation with Montana Free Press, Johnson, with MEIC, echoed Thiele’s concerns with HB 587’s legality, describing HB 587 as “Groundhog Day on material damage.”
Unlike the effort to repeal numeric nutrient standards, which garnered a 69-30 vote in the House, HB 587 hasn’t received bipartisan support. On March 7, two of the House’s Republicans — Shane Klakken of Grass Range and Fiona Nave of Columbus — joined all of the chamber’s Democrats in voting against HB 587.
Who needs clean water, anyway?