Group suing state over water quality standards

A man stands by a culvert spilling water into a stream.

Joe Toller, wastewater operator, stands by the Lewistown Wastewater Treatment Plant’s outfall Friday. Wastewater is a common man-made source of phosphorus and nitrogen.

Photo by Jenny Gessaman

By: 
Jenny Gessaman
Reporter
Montana has set water quality standards for all of its waters too low, at least when it comes to nutrient levels. That’s the claim Upper Missouri Waterkeeper, a nonprofit organization focused on protecting its namesake river, is making in their lawsuit against the EPA for approving the state’s standards.

The nonprofit is challenging a section of the water quality standards that controls nutrient levels, specifically nitrogen and phosphorus. 

Unlike nutrients for the human body, these nutrients are considered detrimental to the state’s waters, Montana Fish, Wildlife and Parks Fisheries Biologist Clint Smith explained.  Smith, who is not associated with the Upper Missouri Waterkeeper group,  explained the effects of extra nutrients.

“Just like in your garden when you apply fertilizer, which has nitrogen and phosphorus in it, the plants grow at an accelerated rate, and the same thing happens with aquatic plants and algae,” he said.

Unlike your garden, Smith continued, biologists don’t always want plants proliferating in the state’s waters.

“What really impacts fisheries and other gill-breathing organisms is when plants decompose: The process consumes dissolved oxygen in the water,” he said.

This can leave fish and other gill-breathing organisms without enough oxygen to breath, according to Smith, possibly leading to fish kills. He added blooming algae, another consequence of increased nutrients, could change the water’s temperature and pH.

Smith clarified nitrogen and phosphorus are naturally present in the state’s waters, and that the standards concerned the extra nutrient amounts added by people.

“They are naturally occurring, and at nutrient levels in the normal range, they provide a very important base layer of the food web,” he said.

The nutrients, and the research on appropriate nutrient levels, are not the issue, according to Waterkeeper’s Executive Director Guy Alsentzer.

“After almost a decade of research, Montana adopted really good scientific standards that tell us what exactly it takes to keep nutrient pollution out of our rivers,” he said.

Instead, Waterkeeper disagrees with the way the standards are being implemented.

“They [the state] created this variance, or replacement standard,” Smith said. “In effect, it replaces the good standards.”

He summed it up another way.

“While we got the science, we gave a free pass to be exempt from that science,” Smith said.

Montana’s Department of Environmental Quality staff disagrees.

“There’s federal authority for the variance under the Clean Water Act, and state authority,” said Dr. Michael Suplee, environmental science specialist with the department. Suplee worked on the research that set the current water quality standards, including nutrient levels.

“What became very clear is we saw the science-determined standards would be very hard to meet,” he said.

Suplee saw both economic and technological challenges facing anyone trying to comply. So the state combined the standards and practicality, resulting in a 20-year variance, or process of meeting the standards over time. DEQ Deputy Director George Mathieus explained.

“The whole point of the variance was a staged approach allowing for technology to improve and become affordable,” he said. “It’s an opportunity to allow for improvements without getting to the standards immediately because of technology or economics.”

Mathieus clarified the variance was not the default option for individuals or businesses that were monitored by the water quality standards.

“We put parts in there that made sure we were exhausting all options before going to the variance option,” he said.

Alsentzer disagreed, saying his organization’s read-through of the standards led to a different conclusion.

“What they’ve laid out, as far as we can tell, is a system that is not discretionary,” he said. “They’re not going to do a case-by-case basis.”

Alsentzer added Waterkeeper also disagreed with the timeframe of the variance.

“The only way we’re [the state] allowed to put in new quality standards is that they have to meet the federal Clean Water Act law, and it doesn’t allow for 20-year variances,” he said.

With the ability to affect every river in the state, Alsentzer believes in making sure the implementation of the standards match up with the research that created them.

“Everyone’s connected in Montana by our rivers, but if we don’t enforce good science-based standards, everyone’s going to suffer, and we’re going to have death by a thousand cuts,” he said.

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