The Montana Board of Environmental Review is weighing a change in the state’s rules for waterway pollution.

The proposed rule, provided for in 2015’s Senate Bill 325, would affect discharge permit holders downstream from other polluters. These firms and agencies could gain a variance from water quality standards, if they meet certain criteria.

The standard in question must be higher than the quality of the receiving water, due to human activity. The applicant would have to provide the department with a pollution minimization plan and other information.

After evaluating this application, the Department of Environmental Quality would have to submit the application to a public comment and review period, and submit it to the EPA for evaluation under the Clean Water Act. An approved variance would be reviewed every five years.

The variance could only proceed if the receiving water’s lower-than-the-standard quality “cannot reasonably be expected to be remediated during the permit term for which the variance is sought.” In effect, this means that remediation is unlikely within five years.

In this provision, Guy Alsentzer, staff attorney with Upper Missouri Waterkeeper, sees a major risk. He argued that the proposed rule allows downstream polluters “the ability to not implement any type of pollution control...simply because there’s upstream pollution that can’t be fixed in a five-year period of time.”

Alsentzer told the Daily Inter Lake it could also run afoul of the Clean Water Act, which prohibits states from adopting water quality standard (WQS) variances “if the designated use and criterion addressed by the WQS variance can be achieved by implementing technology-based effluent limits.”

“Federal law sets the floor for clean water protections,” he continued. “Here it looks like Department of Environmental Quality’s rule as currently written drops below the floor of Clean Water Act protections.” He foresees a lawsuit from the feds if the rule goes through.

Jeni Garcin, public information officer with the Montana Department of Environmental Quality, told the Daily Inter Lake in an email that “the proposed new rule is applicable to dischargers with an upstream pollution source which is a result of human activity, for example, a community grappling with treating water that includes historic mining in the watershed.”

Given the number of conditions to be met, she continued, “we expect it to be applicable in only a few scenarios in Montana, and haven’t identified any in the Flathead area.”

But Waterkeeper’s Alsentzer said “we’re going to assume that everyone downstream can get a variance,” and that he was “optimistic” that the rulemaking board would change course once the Bozeman-based environmental group submits comments on the issue.

The public comment period, open until Feb. 9, comes near the end of a two-year rulemaking process that began shortly after the passage of Senate Bill 325 in the 2015 legislative session.

A copy of the rule can be found at http://deq.mt.gov/DEQAdmin/dir/legal/hearing, and rulemaking documents are available at http://deq.mt.gov/Water/WQPB/standards/SB325Rulemaking. Members of the public can submit comments to Sany Scherer, Legal Secretary at the Department of Environmental Quality. They can be sent by mail to 1520 E. Sixth Avenue, P.O. Box 200901, Helena, MT 59620-0901; fax to (406)444-4386; email to sscherer@mt.gov. Comments must be sent by 5 p.m. on Feb. 9, 2018.

The Board of Environmental Review will hold a hearing on the rule on Friday, Jan. 26. It will start at 10 a.m. in Room 111 of the Metcalf Building, located at 111 East Sixth Avenue in Helena, and will include a public comment session. Garcin said that the board has no plans for a conference call or livestream of the meeting.

Reporter Patrick Reilly can be reached at preilly@dailyinterlake.com, or at 758-4407.