67th Legislature SB 358.1
1 SENATE BILL NO. 358
2 INTRODUCED BY J. ESP
3
4 A BILL FOR AN ACT ENTITLED: “AN ACT ELIMINATING NUTRIENT CRITERIA FROM MONTANA WATER
5 QUALITY STANDARDS; ELIMINATING VARIANCES AND COMPLIANCE SCHEDULES FOR NUTRIENTS;
6 DIRECTING ADOPTION AND AMENDMENT OF ADMINISTRATIVE RULES; PROVIDING FOR A
7 TRANSITION FOR NUTRIENT STANDARDS; PROVIDING RULEMAKING AUTHORITY; AMENDING
8 SECTIONS 75-5-103, 75-5-105, 75-5-301, 75-5-317, AND 75-5-320, MCA; AND REPEALING SECTIONS 75-
9 5-313, 75-5-314, AND 75-5-319, MCA.”
10
11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
12
13 NEW SECTION. Section 1. Transition for nutrient standards -- board of environmental review.
14 The board of environmental rule shall adopt rules related to nutrient standards in consultation with the
15 department of environmental quality and the nutrient work group including:
16 (1) defining the terms "undesirable aquatic life" and "harmful" in a manner consistent with 75-5-301;
17 (2) developing an adaptive management program that provides an incremental approach for
18 restoration and preservation of water quality in streams impaired by nutrients;
19 (3) developing implementation guidance that:
20 (a) applies water quality effluent limitations for nutrients, either nitrogen or phosphorus;
21 (b) considers reasonable potential for total phosphorus and nitrogen after a full mixing of the
22 discharge with the minimum 14-day average streamflow that occurs once every 5 years in the receiving water
23 body;
24 (c) for existing dischargers, considers reasonable potential based on the algae level specified in 75-5-
25 301;
26 (d) for new dischargers, including existing dischargers with an increased source, considers
27 reasonable potential based on the following:
28 (i) for discharges within the level III ecoregion as designated by the U.S. environmental protection
-1- Authorized Print Version – SB 358
67th Legislature SB 358.1
1 agency that includes the northern Rocky Mountains, Canadian Rocky Mountains, Idaho batholith, middle Rocky
2 Mountains, except for the level IV ecoregion of the Absaroka-Gallatin volcanic mountains:
3 (A) total phosphorus concentrations of 0.03 milligrams per liter; and
4 (B) total nitrogen concentrations of 0.8 milligrams per liter;
5 (ii) for discharges within the level III ecoregion as designated by the U.S. environmental protection
6 agency that includes the northwestern glaciated plains, northwestern great plains, and Wyoming basin,
7 excluding the level IV ecoregions of the sweetgrass uplands, Milk River pothole uplands, Rocky Mountain front
8 foothill potholes, foothill grasslands, river breaks, non-calcareous foothill grasslands, Shield-Smith River
9 valleys, limy foothill grasslands, Pryor-Bighorn foothills, and unglaciated Montana high plains:
10 (A) total phosphorous concentrations of 0.15 milligrams per liter; and
11 (B) total nitrogen concentrations of 1.3 milligrams per liter;
12 (iii) for discharges within the level IV ecoregion as designated by the U.S. environmental protection
13 agency of the Absaroka-Gallatin volcanic mountains:
14 (A) total phosphorous concentrations of 0.105 milligrams per liter; and
15 (B) total nitrogen concentrations of 0.80 milligrams per liter;
16 (iv) for discharges within the level IV ecoregions as designated by the U.S. environmental protection
17 agency excluded from subsection (3)(d)(ii) except for the river breaks for which no nutrient effluent limitations
18 apply:
19 (A) total phosphorous concentrations of 0.80 milligrams per liter; and
20 (B) total nitrogen concentrations of 0.80 milligrams per liter;
21 (e) allows the department to develop reasonable potential guidelines based on concentrations or total
22 phosphorous or total nitrogen greater than those provided in subsections (3)(c) and (3)(d) if:
23 (i) data demonstrate that existing concentrations of total phosphorous or total nitrogen exceed the
24 concentrations provided in subsection (3)(a) through (3)(d) and that the discharge will not create conditions that
25 are toxic or harmful to human, animal, plant, or aquatic life;
26 (ii) data demonstrate that existing algae levels exceed a monthly average of 150 milligrams of
27 chlorophyll-a per square meter and that the discharge will not create conditions that are toxic or harmful to
28 human, animal, plant, or aquatic life; or
-2- Authorized Print Version – SB 358
67th Legislature SB 358.1
1 (iii) data demonstrate that the receiving waterbody can sustain algae levels greater than a monthly
2 average of 150 milligrams of chlorophyll-a per square meter without creating conditions that are toxic or harmful
3 to human, animal, plant, or aquatic life.
4
5 NEW SECTION. Section 2. Transition for nutrient standards -- department. Subject to board of
6 environmental rulemaking pursuant to [section 1], the department of environmental quality shall implement
7 water quality standards in a manner consistent with [this act] and consistent with [section 1].
8
9 NEW SECTION. Section 3. Board to amend rules. The board of environmental review shall amend
10 ARM 17.30.201, 17.30.507, 17.30.516, 17.30.602, 17.30.619, 17.30.622, 17.30.623, 17.30.624, 17.30.625,
11 17.30.626, 17.30.627, 17.30.628, 17.30.629, 17.30.635, 17.30.702, and 17.30.715 to delete all references to
12 department circular DEQ-12A, department circular DEQ-12B, base numeric nutrient standards, and nutrient
13 standards variances.
14
15 NEW SECTION. Section 4. Department to amend rules. The department of environmental quality
16 shall amend ARM 17.30.602 and 17.30.660 to delete all references to department circular DEQ-12A,
17 department circular DEQ-12B, base numeric nutrient standards, and nutrient standards variances.
18
19 Section 5. Section 75-5-103, MCA, is amended to read:
20 "75-5-103. (Temporary) Definitions. Unless the context requires otherwise, in this chapter, the
21 following definitions apply:
22 (1) "Associated supporting infrastructure" means:
23 (a) electric transmission and distribution facilities;
24 (b) pipeline facilities;
25 (c) aboveground ponds and reservoirs and underground storage reservoirs;
26 (d) rail transportation;
27 (e) aqueducts and diversion dams;
28 (f) devices or equipment associated with the delivery of an energy form or product produced at an
-3- Authorized Print Version – SB 358
67th Legislature SB 358.1
1 energy development project; or
2 (g) other supporting infrastructure, as defined by board rule, that is necessary for an energy
3 development project.
4 (2) (a) "Base numeric nutrient standards" means numeric water quality criteria for nutrients in surface
5 water that are adopted to protect the designated uses of a surface water body.
6 (b) The term does not include numeric water quality standards for nitrate, nitrate plus nitrite, or nitrite
7 that are adopted to protect human health.
8 (3) (2) "Board" means the board of environmental review provided for in 2-15-3502.
9 (4) (3) "Contamination" means impairment of the quality of state waters by sewage, industrial wastes,
10 or other wastes, creating a hazard to human health.
11 (5) (4) "Council" means the water pollution control advisory council provided for in 2-15-2107.
12 (6) (5) (a) "Currently available data" means data that is readily available to the department at the time
13 a decision is made, including information supporting its previous lists of water bodies that are threatened or
14 impaired.
15 (b) The term does not mean new data to be obtained as a result of department efforts.
16 (7) (6) "Degradation" means a change in water quality that lowers the quality of high-quality waters for
17 a parameter. The term does not include those changes in water quality determined to be nonsignificant
18 pursuant to 75-5-301(5)(c).
19 (8) (7) "Department" means the department of environmental quality provided for in 2-15-3501.
20 (9) (8) "Disposal system" means a system for disposing of sewage, industrial, or other wastes and
21 includes sewage systems and treatment works.
22 (10) (9) "Effluent standard" means a restriction or prohibition on quantities, rates, and concentrations of
23 chemical, physical, biological, and other constituents that are discharged into state waters.
24 (11) (10) (a) "Energy development project" means each plant, unit, or other development and
25 associated developments, including any associated supporting infrastructure, designed for or capable of:
26 (i) generating electricity;
27 (ii) producing gas derived from coal;
28 (iii) producing liquid hydrocarbon products;
-4- Authorized Print Version – SB 358
67th Legislature SB 358.1
1 (iv) refining crude oil or natural gas;
2 (v) producing alcohol to be blended for ethanol-blended gasoline and that are eligible for a tax
3 incentive pursuant to Title 15, chapter 70, part 5;
4 (vi) producing biodiesel and that are eligible for a tax incentive for the production of biodiesel pursuant
5 to 15-32-701; or
6 (vii) transmitting electricity through an electric transmission line with a design capacity of equal to or
7 greater than 50 kilovolts.
8 (b) The term does not include a nuclear facility as defined in 75-20-1202.
9 (12) (11) "Existing uses" means those uses actually attained in state waters on or after July 1, 1971,
10 whether or not those uses are included in the water quality standards.
11 (13) (12) "High-quality waters" means all state waters, except:
12 (a) ground water classified as of January 1, 1995, within the "III" or "IV" classifications established by
13 the board's classification rules; and
14 (b) surface waters that:
15 (i) are not capable of supporting any one of the designated uses for their classification; or
16 (ii) have zero flow or surface expression for more than 270 days during most years.
17 (14) (13) "Impaired water body" means a water body or stream segment for which sufficient credible
18 data shows that the water body or stream segment is failing to achieve compliance with applicable water quality
19 standards.
20 (15) (14) "Industrial waste" means a waste substance from the process of business or industry or from
21 the development of any natural resource, together with any sewage that may be present.
22 (16) (15) "Interested person" means a person who has a real property interest, a water right, or an
23 economic interest that is or may be directly and adversely affected by the department's preliminary decision
24 regarding degradation of state waters, pursuant to 75-5-303. The term includes a person who has requested
25 authorization to degrade high-quality waters.
26 (17) (16) "Load allocation" means the portion of a receiving water's loading capacity that is allocated to
27 one of its existing or future nonpoint sources or to natural background sources.
28 (18) (17) "Loading capacity" means the mass of a pollutant that a water body can assimilate without a
-5- Authorized Print Version – SB 358
67th Legislature SB 358.1
1 violation of water quality standards. For pollutants that cannot be measured in terms of mass, it means the
2 maximum change that can occur from the best practicable condition in a surface water without causing a
3 violation of the surface water quality standards.
4 (19) (18) "Local department of health" means the staff, including health officers, employed by a county,
5 city, city-county, or district board of health.
6 (20) (19) "Metal parameters" includes but is not limited to aluminum, antimony, arsenic, beryllium,
7 barium, cadmium, chromium, copper, fluoride, iron, lead, manganese, mercury, nickel, selenium, silver,
8 thallium, and zinc.
9 (21) (20) "Mixing zone" means an area established in a permit or final decision on nondegradation
10 issued by the department where water quality standards may be exceeded, subject to conditions that are
11 imposed by the department and that are consistent with the rules adopted by the board.
12 (22) "Nutrient standards variance" means numeric water quality criteria for nutrients based on a
13 determination that base numeric nutrient standards cannot be achieved because of economic impacts or
14 because of the limits of technology. The term includes individual, general, and alternative nutrient standards
15 variances in accordance with75-5-313.
16 (23) (21) "Nutrient work group" means an advisory work group, convened by the department,
17 representing publicly owned and privately owned point sources of pollution, nonpoint sources of pollution, and
18 other interested parties that will advise the department on the base numeric nutrient standards, the
19 development of nutrient standards variances, and the implementation of those standards, and variances
20 together with associated economic impacts.
21 (24) (22) "Other wastes" means garbage, municipal refuse, decayed wood, sawdust, shavings, bark,
22 lime, sand, ashes, offal, night soil, oil, grease, tar, heat, chemicals, dead animals, sediment, wrecked or
23 discarded equipment, radioactive materials, solid waste, and all other substances that may pollute state waters.
24 (25) (23) "Outstanding resource waters" means:
25 (a) state surface waters located wholly within the boundaries of areas designated as national parks or
26 national wilderness areas as of October 1, 1995; or
27 (b) other surface waters or ground waters classified by the board under the provisions of 75-5-316
28 and approved by the legislature.
-6- Authorized Print Version – SB 358
67th Legislature SB 358.1
1 (26) (24) "Owner or operator" means a person who owns, leases, operates, controls, or supervises a
2 point source.
3 (27) (25) "Parameter" means a physical, biological, or chemical property of state water when a value of
4 that property affects the quality of the state water.
5 (28) (26) "Person" means the state, a political subdivision of the state, institution, firm, corporation,
6 partnership, individual, or other entity and includes persons resident in Canada.
7 (29) (27) "Point source" means a discernible, confined, and discrete conveyance, including but not
8 limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, or vessel or
9 other floating craft, from which pollutants are or may be discharged.
10 (30) (28) (a) "Pollution" means:
11 (i) contamination or other alteration of the physical, chemical, or biological properties of state waters
12 that exceeds that permitted by Montana water quality standards, including but not limited to standards relating
13 to change in temperature, taste, color, turbidity, or odor; or
14 (ii) the discharge, seepage, drainage, infiltration, or flow of liquid, gaseous, solid, radioactive, or other
15 substance into state water that will or is likely to create a nuisance or render the waters harmful, detrimental, or
16 injurious to public health, recreation, safety, or welfare, to livestock, or to wild animals, birds, fish, or other
17 wildlife.
18 (b) The term does not include:
19 (i) a discharge, seepage, drainage, infiltration, or flow that is authorized under the pollution discharge
20 permit rules adopted by the board under this chapter;
21 (ii) activities conducted under this chapter that comply with the conditions imposed by the department
22 in short-term authorizations pursuant to 75-5-308;
23 (iii) contamination of ground water within the boundaries