Repeal numeric nutrient standards

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AN ACT REVISING THE NUTRIENT CRITERIA FOR MONTANA WATER QUALITY STANDARDS;
REMOVING REFERENCES TO NUMERIC NUTRIENT STANDARDS IN ADMINISTRATIVE RULE;
REPEALING BASE NUMERIC NUTRIENT STANDARDS; PROVIDING DIRECTIONS TO THE DEPARTMENT
OF ENVIRONMENTAL QUALITY; PROVIDING RULEMAKING AUTHORITY; ELIMINATING THE NUTRIENT
WORK GROUP; AMENDING SECTION 75-5-103, MCA; REPEALING SECTION 75-5-321, MCA; AND
PROVIDING AN IMMEDIATE EFFECTIVE DATE.
WHEREAS, the objective of the Clean Water Act is to "restore and maintain the chemical, physical, and
biological integrity of the Nation's waters"; and
WHEREAS, the Environmental Protection Agency (EPA) authorized the Montana Department of
Environmental Quality (DEQ) to regulate most water quality programs in the state; and
WHEREAS, beginning in 1998, the EPA "strongly encouraged" numeric nutrient standards, which the
DEQ adopted in 2015; and
WHEREAS, from 2011 through 2014, members of the Nutrient Work Group and the public endeavored
to develop rules to govern numeric nutrient criteria, rules, and guidance. The work involved interactions
between the DEQ and EPA on the proposed rules, variances, and guidance and led to the adoption of rule
packages by the Board of Environmental Review. Even though the EPA had clarity on the proposals before
they were finalized and had indicated its support for Montana's approach, the agency adopted a rule that made
it impossible for Montana's rules and variances from working as intended. The EPA never approved a general
variance for private sector dischargers; and
WHEREAS, these numeric nutrient standards were not explicitly required by law, and many states have
not adopted numeric nutrient standards for all of their bodies of water; and
WHEREAS, the 2021 Montana Legislature, recognizing this, chose to re-establish narrative nutrient
standards in Senate Bill 358; and
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WHEREAS, the Nutrient Work Group, which included participants from the DEQ and EPA, worked
diligently to assess the viability of a general variance to allow compliance with numeric standards and to
develop narrative standards without widespread economic consequences, but to no avail; and
WHEREAS, the failure to adopt narrative nutrient standards means that Montana again operates under
the old, unattainable numeric nutrient standards; and
WHEREAS, Montana's numeric nutrient standards and variances provided for in law and in ARM
17.30.507, 17.30.516, 17.30.602, 17.30.619, 17.30.622, 17.30.623, 17.30.624, 17.30.625, 17.30.626,
17.30.627, 17.30.628, 17.30.629, 17.30.660, 17.30.702, 17.30.715, and 17.30.1388 have subsequently proven
to be unachievable and burdensome, especially for Montana's municipal wastewater treatment systems.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Department to amend rules. The department shall amend ARM 17.30.507, 17.30.516,
17.30.602, 17.30.619, 17.30.622, 17.30.623, 17.30.624, 17.30.625, 17.30.626, 17.30.627, 17.30.628,
17.30.629, 17.30.702, and 17.30.715 to delete all references to department circular DEQ-12A, base numeric
nutrient standards, and nutrient standards variances.
Section 2. Directions to department. The department shall:
(1) repeal department circular DEQ-12A Montana base numeric nutrient standards as adopted into
administrative rule on August 8, 2014; and
(2) amend all guidance, assessment methods, total maximum daily load calculations, and other
policies and procedures to eliminate reference to or reliance on department circular DEQ-12A.
Section 3. Section 75-5-103, MCA, is amended to read:
"75-5-103. (Temporary) Definitions. Unless the context requires otherwise, in this chapter the
following definitions apply:
(1) "Associated supporting infrastructure" means:
(a) electric transmission and distribution facilities;
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(b) pipeline facilities;
(c) aboveground ponds and reservoirs and underground storage reservoirs;
(d) rail transportation;
(e) aqueducts and diversion dams;
(f) devices or equipment associated with the delivery of an energy form or product produced at an
energy development project; or
(g) other supporting infrastructure, as defined by department rule, that is necessary for an energy
development project.
(2) "Board" means the board of environmental review provided for in 2-15-3502.
(3) "Contamination" means impairment of the quality of state waters by sewage, industrial wastes,
or other wastes, creating a hazard to human health.
(4) "Council" means the water pollution control advisory council provided for in 2-15-2107.
(5) (a) "Currently available data" means data that is readily available to the department at the time
a decision is made, including information supporting its previous lists of water bodies that are threatened or
impaired.
(b) The term does not mean new data to be obtained as a result of department efforts.
(6) "Degradation" means a change in water quality that lowers the quality of high-quality waters for
a parameter. The term does not include those changes in water quality determined to be nonsignificant
pursuant to 75-5-301(5)(c).
(7) "Department" means the department of environmental quality provided for in 2-15-3501.
(8) "Disposal system" means a system for disposing of sewage, industrial, or other wastes and
includes sewage systems and treatment works.
(9) "Effluent standard" means a restriction or prohibition on quantities, rates, and concentrations of
chemical, physical, biological, and other constituents that are discharged into state waters.
(10) "Energy development project" means each plant, unit, or other development and associated
developments, including any associated supporting infrastructure, designed for or capable of:
(a) generating electricity;
(b) producing gas derived from coal;
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(c) producing liquid hydrocarbon products;
(d) refining crude oil or natural gas;
(e) producing alcohol to be blended for ethanol-blended gasoline and that are eligible for a tax
incentive pursuant to Title 15, chapter 70, part 5; or
(f) transmitting electricity through an electric transmission line with a design capacity of equal to or
greater than 50 kilovolts.
(11) "Existing uses" means those uses actually attained in state waters on or after July 1, 1971,
whether or not those uses are included in the water quality standards.
(12) "High-quality waters" means all state waters, except:
(a) ground water classified as of January 1, 1995, within the "III" or "IV" classifications established
by the department's classification rules; and
(b) surface waters that:
(i) are not capable of supporting any one of the designated uses for their classification; or
(ii) have zero flow or surface expression for more than 270 days during most years.
(13) "Impaired water body" means a water body or stream segment for which sufficient credible data
shows that the water body or stream segment is failing to achieve compliance with applicable water quality
standards.
(14) "Industrial waste" means a waste substance from the process of business or industry or from
the development of any natural resource, together with any sewage that may be present.
(15) "Interested person" means a person who has a real property interest, a water right, or an
economic interest that is or may be directly and adversely affected by the department's preliminary decision
regarding degradation of state waters, pursuant to 75-5-303. The term includes a person who has requested
authorization to degrade high-quality waters.
(16) "Load allocation" means the portion of a receiving water's loading capacity that is allocated to
one of its existing or future nonpoint sources or to natural background sources.
(17) "Loading capacity" means the mass of a pollutant that a water body can assimilate without a
violation of water quality standards. For pollutants that cannot be measured in terms of mass, it means the
maximum change that can occur from the best practicable condition in a surface water without causing a
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violation of the surface water quality standards.
(18) "Local department of health" means the staff, including health officers, employed by a county,
city, city-county, or district board of health.
(19) "Metal parameters" includes but is not limited to aluminum, antimony, arsenic, beryllium,
barium, cadmium, chromium, copper, fluoride, iron, lead, manganese, mercury, nickel, selenium, silver,
thallium, and zinc.
(20) "Mixing zone" means an area established in a permit or final decision on nondegradation
issued by the department where water quality standards may be exceeded, subject to conditions that are
imposed by the department and that are consistent with the rules adopted by the department.
(21) "Nutrient work group" means an advisory work group, convened by the department,
representing publicly owned and privately owned point sources of pollution, nonpoint sources of pollution, and
other interested parties that will advise the department on nutrient standards, the implementation of those
standards, and associated economic impacts.
(22)(21)"Other wastes" means garbage, municipal refuse, decayed wood, sawdust, shavings, bark,
lime, sand, ashes, offal, night soil, oil, grease, tar, heat, chemicals, dead animals, sediment, wrecked or
discarded equipment, radioactive materials, solid waste, and all other substances that may pollute state waters.
(23)(22)"Outstanding resource waters" means:
(a) state surface waters located wholly within the boundaries of areas designated as national parks
or national wilderness areas as of October 1, 1995; or
(b) other surface waters or ground waters classified by the department under the provisions of 75-
5-316 and approved by the legislature.
(24)(23)"Owner or operator" means a person who owns, leases, operates, controls, or supervises a
point source.
(25)(24)"Parameter" means a physical, biological, or chemical property of state water when a value of
that property affects the quality of the state water.
(26)(25)"Person" means the state, a political subdivision of the state, institution, firm, corporation,
partnership, individual, or other entity and includes persons resident in Canada.
(27)(26)"Point source" means a discernible, confined, and discrete conveyance, including but not
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limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel or
other floating craft, from which pollutants are or may be discharged.
(28)(27)(a) "Pollution" means:
(i) contamination or other alteration of the physical, chemical, or biological properties of state
waters that exceeds that permitted by Montana water quality standards, including but not limited to standards
relating to change in temperature, taste, color, turbidity, or odor; or
(ii) the discharge, seepage, drainage, infiltration, or flow of liquid, gaseous, solid, radioactive, or
other substance into state water that will or is likely to create a nuisance or render the waters harmful,
detrimental, or injurious to public health, recreation, safety, or welfare, to livestock, or to wild animals, birds,
fish, or other wildlife.
(b) The term does not include:
(i) a discharge, seepage, drainage, infiltration, or flow that is authorized under the pollution
discharge permit rules adopted by the department under this chapter;
(ii) activities conducted under this chapter that comply with the conditions imposed by the
department in short-term authorizations pursuant to 75-5-308;
(iii) contamination of ground water within the boundaries of an underground mine using in situ coal
gasification and operating in accordance with a permit issued under 82-4-221.
(c) Contamination referred to in subsections (28)(b)(iii) and (28)(b)(iv) subsection (27)(b)(iii) does
not require a mixing zone.
(29)(28)"Sewage" means water-carried waste products from residences, public buildings, institutions,
or other buildings, including discharge from human beings or animals, together with ground water infiltration
and surface water present.
(30)(29)"Sewage system" means a device for collecting or conducting sewage, industrial wastes, or
other wastes to an ultimate disposal point.
(31)(30)"Standard of performance" means a standard adopted by the department for the control of the
discharge of pollutants that reflects the greatest degree of effluent reduction achievable through application of
the best available demonstrated control technology, processes, operating methods, or other alternatives,
including, when practicable, a standard permitting no discharge of pollutants.
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(32)(31)(a) "State waters" means a body of water, irrigation system, or drainage system, either surface
or underground.
(b) The term does not apply to:
(i) ponds or lagoons used solely for treating, transporting, or impounding pollutants; or
(ii) irrigation waters or land application disposal waters when the waters are used up within the
irrigation or land application disposal system and the waters are not returned to state waters.
(33)(32)"Sufficient credible data" means chemical, physical, or biological monitoring data, alone or in
combination with narrative information, that supports a finding as to whether a water body is achieving
compliance with applicable water quality standards.
(34)(33)"Threatened water body" means a water body or stream segment for which sufficient credible
data and calculated increases in loads show that the water body or stream segment is fully supporting its
designated uses but threatened for a particular designated use because of:
(a) proposed sources that are not subject to pollution prevention or control actions required by a
discharge permit, the nondegradation provisions, or reasonable land, soil, and water conservation practices; or
(b) documented adverse pollution trends.
(35)(34)"Total maximum daily load" or "TMDL" means the sum of the individual waste load allocations
for point sources and load allocations for both nonpoint sources and natural background sources established at
a level necessary to achieve compliance with applicable surface water quality standards.
(36)(35)"Treatment works" means works, including sewage lagoons, installed for treating or holding
sewage, industrial wastes, or other wastes.
(37)(36)"Waste load allocation" means the portion of a receiving water's loading capacity that is
allocated to one of its existing or future point sources.
(38)(37)"Water quality protection practices" means those activities, prohibitions, maintenance
procedures, or other management practices applied to point and nonpoint sources designed to protect,
maintain, and improve the quality of state waters. Water quality protection practices include but are not limited
to treatment requirements, standards of performance, effluent standards, and operating procedures and
practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from material storage.
(39)(38)"Water well" means an excavation that is drilled, cored, bored, washed, driven, dug, jetted, or
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otherwise constructed and intended for the location, diversion, artificial recharge, or acquisition of ground water.
(40)(39)"Watershed advisory group" means a group of individuals who wish to participate in an
advisory capacity in revising and reprioritizing the list of water bodies developed under 75-5-702 and in the
development of TMDLs under 75-5-703, including those groups or individuals requested by the department to
participate in an advisory capacity as provided in 75-5-704.
75-5-103. (Effective on occurrence of contingency) Definitions. Unless the context requires
otherwise, in this chapter the following definitions apply:
(1) "Associated supporting infrastructure" means:
(a) electric transmission and distribution facilities;
(b) pipeline facilities;
(c) aboveground ponds and reservoirs and underground storage reservoirs;
(d) rail transportation;
(e) aqueducts and diversion dams;
(f) devices or equipment associated with the delivery of an energy form or product produced at an
energy development project; or
(g) other supporting infrastructure, as defined by department rule, that is necessary for an energy
development project.
(2) "Board" means the board of environmental review provided for in 2-15-3502.
(3) "Contamination" means impairment of the quality of state waters by sewage, industrial wastes,
or other wastes, creating a hazard to human health.
(4) "Council" means the water pollution control advisory council provided for in 2-15-2107.
(5) (a) "Currently available data" means data that is readily available to the department at the time
a decision is made, including information supporting its previous lists of water bodies that are threatened or
impaired.
(b) The term does not mean new data to be obtained as a result of department efforts.
(6) "Degradation" means a change in water quality that lowers the quality of high-quality waters for
a parameter. The term does not include those changes in water quality determined to be nonsignificant
pursuant to 75-5-301(5)(c).
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(7) "Department" means the department of environmental quality provided for in 2-15-3501.
(8) "Disposal system" means a system for disposing of sewage, industrial, or other wastes and
includes sewage systems and treatment works.
(9) "Effluent standard" means a restriction or prohibition on quantities, rates, and concentrations of
chemical, physical, biological, and other constituents that are discharged into state waters.
(10) "Energy development project" means each plant, unit, or other development and associated
developments, including any associated supporting infrastructure, designed for or capable of:
(a) generating electricity;
(b) producing gas derived from coal;
(c) producing liquid hydrocarbon products;
(d) refining crude oil or natural gas;
(e) producing alcohol to be blended for ethanol-blended gasoline and that are eligible for a tax
incentive pursuant to Title 15, chapter 70, part 5; or
(f) transmitting electricity through an electric transmission line with a design capacity of equal to or
greater than 50 kilovolts.
(11) "Existing uses" means those uses actually attained in state waters on or after July 1, 1971,
whether or not those uses are included in the water quality standards.
(12) "High-quality waters" means all state waters, except:
(a) ground water classified as of January 1, 1995, within the "III" or "IV" classifications established
by the department's classification rules; and
(b) surface waters that:
(i) are not capable of supporting any one of the designated uses for their classification; or
(ii) have zero flow or surface expression for more than 270 days during most years.
(13) "Impaired water body" means a water body or stream segment for which sufficient credible data
shows that the water body or stream segment is failing to achieve compliance with applicable water quality
standards.
(14) "Industrial waste" means a waste substance from the process of business or industry or from
the development of any natural resource, together with any sewage that may be present.
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(15) "Interested person" means a person who has a real property interest, a water right, or an
economic interest that is or may be directly and adversely affected by the department's preliminary decision
regarding degradation of state waters, pursuant to 75-5-303. The term includes a person who has requested
authorization to degrade high-quality waters.
(16) "Load allocation" means the portion of a receiving water's loading capacity that is allocated to
one of its existing or future nonpoint sources or to natural background sources.
(17) "Loading capacity" means the mass of a pollutant that a water body can assimilate without a
violation of water quality standards. For pollutants that cannot be measured in terms of mass, it means the
maximum change that can occur from the best practicable condition in a surface water without causing a
violation of the surface water quality standards.
(18) "Local department of health" means the staff, including health officers, employed by a county,
city, city-county, or district board of health.
(19) "Metal parameters" includes but is not limited to aluminum, antimony, arsenic, beryllium,
barium, cadmium, chromium, copper, fluoride, iron, lead, manganese, mercury, nickel, selenium, silver,
thallium, and zinc.
(20) "Mixing zone" means an area established in a permit or final decision on nondegradation
issued by the department where water quality standards may be exceeded, subject to conditions that are
imposed by the department and that are consistent with the rules adopted by the department.
(21) "Nutrient work group" means an advisory work group, convened by the department,
representing publicly owned and privately owned point sources of pollution, nonpoint sources of pollution, and
other interested parties that will advise the department on nutrient standards, the implementation of those
standards, and associated economic impacts.
(22)(21)"Other wastes" means garbage, municipal refuse, decayed wood, sawdust, shavings, bark,
lime, sand, ashes, offal, night soil, oil, grease, tar, heat, chemicals, dead animals, sediment, wrecked or
discarded equipment, radioactive materials, solid waste, and all other substances that may pollute state waters.
(23)(22)"Outstanding resource waters" means:
(a) state surface waters located wholly within the boundaries of areas designated as national parks
or national wilderness areas as of October 1, 1995; or
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(b) other surface waters or ground waters classified by the department under the provisions of 75-
5-316 and approved by the legislature.
(24)(23)"Owner or operator" means a person who owns, leases, operates, controls, or supervises a
point source.
(25)(24)"Parameter" means a physical, biological, or chemical property of state water when a value of
that property affects the quality of the state water.
(26)(25)"Person" means the state, a political subdivision of the state, institution, firm, corporation,
partnership, individual, or other entity and includes persons resident in Canada.
(27)(26)"Point source" means a discernible, confined, and discrete conveyance, including but not
limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel or
other floating craft, from which pollutants are or may be discharged.
(28)(27)(a) "Pollution" means:
(i) contamination or other alteration of the physical, chemical, or biological properties of state
waters that exceeds that permitted by Montana water quality standards, including but not limited to standards
relating to change in temperature, taste, color, turbidity, or odor; or
(ii) the discharge, seepage, drainage, infiltration, or flow of liquid, gaseous, solid, radioactive, or
other substance into state water that will or is likely to create a nuisance or render the waters harmful,
detrimental, or injurious to public health, recreation, safety, or welfare, to livestock, or to wild animals, birds,
fish, or other wildlife.
(b) The term does not include:
(i) a discharge, seepage, drainage, infiltration, or flow that is authorized under the pollution
discharge permit rules adopted by the department under this chapter;
(ii) activities conducted under this chapter that comply with the conditions imposed by the
department in short-term authorizations pursuant to 75-5-308;
(iii) contamination of ground water within the boundaries of a geologic storage reservoir, as defined
in 82-11-101, by a carbon dioxide injection well in accordance with a permit issued pursuant to Title 82, chapter
11, part 1;
(iv) contamination of ground water within the boundaries of an underground mine using in situ coal
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gasification and operating in accordance with a permit issued under 82-4-221;
(c) Contamination referred to in subsections (28)(b)(iii) and (28)(b)(iv) (27)(b)(iii) and (27)(b)(iv)
does not require a mixing zone.
(29)(28)"Sewage" means water-carried waste products from residences, public buildings, institutions,
or other buildings, including discharge from human beings or animals, together with ground water infiltration
and surface water present.
(30)(29)"Sewage system" means a device for collecting or conducting sewage, industrial wastes, or
other wastes to an ultimate disposal point.
(31)(30)"Standard of performance" means a standard adopted by the department for the control of the
discharge of pollutants that reflects the greatest degree of effluent reduction achievable through application of
the best available demonstrated control technology, processes, operating methods, or other alternatives,
including, when practicable, a standard permitting no discharge of pollutants.
(32)(31)(a) "State waters" means a body of water, irrigation system, or drainage system, either surface
or underground.
(b) The term does not apply to:
(i) ponds or lagoons used solely for treating, transporting, or impounding pollutants; or
(ii) irrigation waters or land application disposal waters when the waters are used up within the
irrigation or land application disposal system and the waters are not returned to state waters.
(33)(32)"Sufficient credible data" means chemical, physical, or biological monitoring data, alone or in
combination with narrative information, that supports a finding as to whether a water body is achieving
compliance with applicable water quality standards.
(34)(33)"Threatened water body" means a water body or stream segment for which sufficient credible
data and calculated increases in loads show that the water body or stream segment is fully supporting its
designated uses but threatened for a particular designated use because of:
(a) proposed sources that are not subject to pollution prevention or control actions required by a
discharge permit, the nondegradation provisions, or reasonable land, soil, and water conservation practices; or
(b) documented adverse pollution trends.
(35)(34)"Total maximum daily load" or "TMDL" means the sum of the individual waste load allocations
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for point sources and load allocations for both nonpoint sources and natural background sources established at
a level necessary to achieve compliance with applicable surface water quality standards.
(36)(35)"Treatment works" means works, including sewage lagoons, installed for treating or holding
sewage, industrial wastes, or other wastes.
(37)(36)"Waste load allocation" means the portion of a receiving water's loading capacity that is
allocated to one of its existing or future point sources.
(38)(37)"Water quality protection practices" means those activities, prohibitions, maintenance
procedures, or other management practices applied to point and nonpoint sources designed to protect,
maintain, and improve the quality of state waters. Water quality protection practices include but are not limited
to treatment requirements, standards of performance, effluent standards, and operating procedures and
practices to control site runoff, spillage or leaks, sludge or water disposal, or drainage from material storage.
(39)(38)"Water well" means an excavation that is drilled, cored, bored, washed, driven, dug, jetted, or
otherwise constructed and intended for the location, diversion, artificial recharge, or acquisition of ground water.
(40)(39)"Watershed advisory group" means a group of individuals who wish to participate in an
advisory capacity in revising and reprioritizing the list of water bodies developed under 75-5-702 and in the
development of TMDLs under 75-5-703, including those groups or individuals requested by the department to
participate in an advisory capacity as provided in 75-5-704."
Section 4. Repealer. The following section of the Montana Code Annotated is repealed:
75-5-321. Transition for nutrient standards.
Section 5. Repealer. ARM 17.30.660 and 17.30.1388 are repealed.
Section 6. Codification instruction. [Section 2] is intended to be codified as an integral part of Title
75, chapter 5, part 3, and the provisions of Title 75, chapter 5, part 3, apply to [section 2].
Section 7. Effective date. [This act] is effective on passage and approval.
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I hereby certify that the within bill,
HB 664, originated in the House.
___________________________________________
Chief Clerk of the House
___________________________________________
Speaker of the House
Signed this _______________________________day
of____________________________________, 2025.
___________________________________________
President of the Senate
Signed this _______________________________day
of____________________________________, 2025.
HOUSE BILL NO. 664
INTRODUCED BY B. MERCER, J. ESP
AN ACT REVISING THE NUTRIENT CRITERIA FOR MONTANA WATER QUALITY STANDARDS; REMOVING
REFERENCES TO NUMERIC NUTRIENT STANDARDS IN ADMINISTRATIVE RULE; REPEALING BASE
NUMERIC NUTRIENT STANDARDS; PROVIDING DIRECTIONS TO THE DEPARTMENT OF
ENVIRONMENTAL QUALITY; PROVIDING RULEMAKING AUTHORITY; ELIMINATING THE NUTRIENT
WORK GROUP; AMENDING SECTION 75-5-103, MCA; REPEALING SECTION 75-5-321, MCA; AND
PROVIDING AN IMMEDIATE EFFECTIVE DATE.