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Rep. Mercer seeks repeal of numeric nutrient criteria; DEQ and conservation groups split on path forward
Summary
House Bill 664 would reverse DEQ’s 2015 numeric nutrient criteria by repealing related administrative rules and require the department to pursue narrative standards and other tools; DEQ and several conservation groups supported resetting processes, while other environmental and municipal advocates warned the bill could remove numeric protections
Representative Bill Mercer opened House Bill 664, which would direct the Department of Environmental Quality to repeal numeric nutrient criteria adopted in 2015 and return the state to narrative nutrient standards and the variance framework that accompanied that earlier work. Mercer said the numeric criteria and the variance structure were developed together, and that subsequent federal actions and EPA decisions have decoupled numeric criteria from the variance authority the Legislature intended.
Mercer reviewed the historical record in his testimony, citing the 2011 legislative direction (Senate Bill 367), DEQ rulemaking, communications with EPA Region 8, and the nutrient working group’s multi-year process. He told the committee that an EPA action in 2017 altered the agency’s approach, leaving numeric criteria in place without the regulatory variance framework that had been envisioned and approved earlier in the process.
DEQ Director Sonya Nowakowski and Water Quality Division Administrator Lindsey Krivaruchka told the committee the department has spent nearly three years drafting an alternate framework — including narrative standards, adaptive management, and a translator — but the package failed to win broad support at the Secretary of State review in 2021. Nowakowski said the department is not set up to "win" against current federal interpretation and that Montana risks losing program authority if it cannot issue permits. She urged passage of HB 664 to prompt EPA to reconsider prior decisions and to allow Montana to move toward a policy balancing science and feasibility.
Some conservation organizations, including Trout Unlimited, expressed reluctant support for HB 664 as a pragmatic step to reset and rebuild a workable program. Trout Unlimited’s Clayton Elliott said that while in an ideal world he would support numeric standards, the current statutory and regulatory situation is not delivering timely permits or enforceable, practicable implementation.
Opponents included Northern Plains Resource Council, MEIC, the Montana League of Cities and Towns, and others who argued numeric criteria were grounded in science and that repeal would remove clarity about permit limits. Northern Plains’ Sarah Zuzilak said many treatment technologies exist to meet numeric-based permit limits and warned the bill oversimplifies two distinct issues: numeric water-quality standards and implementation/permit tools. The League of Cities and Towns urged continued multi-stakeholder bargaining to find a pragmatic pathway that preserves permit certainty while addressing feasibility and cost.
Several witnesses noted the legal complexity: EPA has already disapproved pieces of prior legislative packages and DEQ’s work; any repeal would likely trigger federal review and litigation, and would require a defensible narrative standard accompanied by translator and implementation tools to meet Clean Water Act obligations.
Ending: The committee heard substantive, polarized testimony. DEQ urged a path that would preserve federal approval and program authority; conservation and municipal groups differed on whether repeal would improve or weaken protection. No committee final action was recorded.
