Lawmakers debate renaming ‘authorization to degrade’ and new ‘feasibility allowances’ for water quality

The House Natural Resources Committee heard extensive testimony on House Bill 685, which would revise Montana's nondegradation policy by replacing the statutory phrase "authorization to degrade" with a new term, "feasibility allowance," and by changing related statutory language.

Sponsor Rep. Steve Fitzpatrick said the change was requested by DEQ and intended to reflect existing federal terminology and a process that includes public participation, monitoring and conditions. "This allowance is already used in both federal and state law," Fitzpatrick told the committee, saying the measure aims to make the statute's terminology more accurate and predictable for projects that seek an allowance.

Industry witnesses described the proposal as a modest, clarifying update. Matt Vincent of the Montana Mining Association called it a name alignment that preserves existing protections for Montana's highest-quality waters: "All this bill does is propose to change the name to align with the fact that this is a process, a robust process that may or may not lead to flexibility in a discharger's permit and it'll be based on sound analysis and public participation." John Iverson of Treasure State Resources Association and representatives of petroleum interests and other trade groups voiced similar support.

Opponents warned the bill goes beyond a name change and could alter statutory balancing tests. Derf Johnson of the Montana Environmental Information Center said the bill could shift the burden toward allowing degradation and highlighted a specific change on page 15 that, in his view, would remove language weighing environmental and social costs: "What we're doing here is we're eliminating that careful balance. We're putting the thumb entirely on the scale, taking out environmental impacts, social considerations of pollution, and simply considering the net benefit associated with degrading Montana's waters." Caroline Canarios of Northern Plains echoed concerns that the term "feasibility allowance" is not defined and that the bill removes required consideration of social and environmental costs.

Sam Carlson of the Clark Fork Coalition urged the committee to preserve an explicit requirement to weigh both social and environmental costs against benefits: "By removing consideration of the social and environmental costs, this bill creates an unbalanced and unreasonable framework for regulating water quality."

Department of Environmental Quality witnesses said the department's process would not change and that the proposed wording mirrors language in 40 C.F.R. 131.12(a)(2)(ii). Director Sonia Nowakowski said DEQ had been consulted and characterized the change as terminology alignment rather than a substantive rollback: "Our process will not change in how we move forward and assess our request for authorization to degrade or a feasibility allowance."

Committee members asked about definitions, the statutory text on page 15, and whether the change would allow more degraded water quality in practice. Several legislators said the issue raises difficult tradeoffs; sponsors and proponents emphasized procedural safeguards such as monitoring, conditions, and prohibitions for outstanding waters.