Flathead Lakers File Suit in US District Court to Protect Water Quality
On Monday, The Flathead Lakers and our partners the Upper Missouri Waterkeeper filed a lawsuit against the Environmental Protection Agency (EPA) for approving the State of Montana’s clean water quality rollbacks that repeal scientific numeric nutrient water quality standards for arbitrary, reactive narrative standards.
“EPA doesn’t get to rubber-stamp the State of Montana’s illegal water quality rollbacks for polluters and pretend there is no risk,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “The law requires agencies to understand how gutting water pollution control standards would impact the state’s clean water resources, including threatened and endangered species, before making a decision. EPA didn’t do their homework before hastily approving the state government’s giveaway to polluters allowing more pollution into our waterways, which will have many deleterious consequences for Montanans.”
“Clean water is the backbone of the Flathead watershed, it sustains our economy, our communities, and our way of life,” said Coby Gierke, Executive Director of Flathead Lakers. “For more than a century, science has guided how we understand and protect these waters, thanks in large part to the second-oldest freshwater biological research station in the country, which has monitored Flathead Lake and its watershed for 126 years. It is not worth risking the famously clean waters of the Flathead. Waters that generations of Montanans have relied on for drinking, swimming, fishing, and cultural connection, so that polluters can more easily meet regulatory requirements,” Gierke continued. “This is not a resource we can afford to gamble with. Protecting special places like the Flathead requires vigilance, strong science-based standards, and the tools to hold polluters accountable.”
EPA’s approval of Montana’s repeal of numeric nutrient standards lacked a scientific basis and demonstrated the agency’s failure to fulfill their consultation duty with the U.S. Fish and Wildlife Service (FWS) prior to making this decision, violating its obligations under the Endangered Species Act Section 7(a)(2), 16 U.S.C § 1536(a)(2), to ensure against jeopardy to listed species or destruction or adverse modification of critical habitat. EPA is legally required to consult with FWS before making this decision, and despite having notice since May that the State of Montana was eliminating numeric nutrient standards in place of a weaker narrative standard, EPA only shared a biological assessment with FWS three days before approving Montana’s rollback – providing far too little time to meaningfully evaluate harm.
For over a decade, Montana’s numeric nutrient water quality standards have provided clear, measurable benchmarks for limiting nutrient pollution in the state’s waterways. In 2014, Montana led the way with the most protective water quality standards as the first state in the country to adopt numeric nutrient standards, based on decades of science demonstrating clear links between nutrient pollution and algal blooms, degraded fisheries, and unsafe drinking water. Montana’s rollback of numeric nutrient water quality standards is unprecedented; never before, in the fifty-three year history of the Clean Water Act, has a state adopted strong, science-based numeric nutrient standards and then reversed course due to political pressure from polluting industries.
History of MT’s Nutrient Water Quality Standards:
In 2014, Montana was the first state in the country to implement numeric nutrient standards, leading the way for setting waterway protections from human-based pollution sources. The rule package included a “variance” rule that exempted most major wastewater discharges from meeting pollution limits for 20-years. (Montana adopted good, science-based limits for nutrient pollution but then decided to give most polluters a free pass from complying with those limits.)
In 2016, Waterkeeper filed a lawsuit challenging the variance rule, arguing that 20-year exemptions for polluters without any guarantee of when or how water quality standards will be met violates federal law.
In 2019, the court ruled in favor of Waterkeeper and deemed the exemption scheme unlawful, meaning most polluters were not allowed to use a variance to escape responsibility for controlling and treating their nutrient wastewater. The State of MT and the EPA appealed, resulting in a ruling that 36 municipal dischargers in Montana could use variances to slowly address nutrient pollution control, and industrial and corporate polluters could use a variance if they can prove that meeting pollution criteria would result in substantial economic harm.
In 2021, the Montana Legislature passed Senate Bill 358, which repealed numeric nutrient standards and brought us back to square one, allowing polluters to recklessly pollute without any accountability. Waterkeeper filed a petition to the EPA requesting it deny the repeal, and after the agency failed to take action, Waterkeeper sued the EPA. As a result, the EPA disapproved core sections of SB 358, leaving numeric nutrient standards in full effect.
In 2025, despite the EPA shutting down the same efforts in 2021, the Legislature passed House Bill 664, another repeal of numeric nutrient standards. This time, however, the EPA approved the rollback of numeric nutrient standards. The state of Montana is now issuing discharge permits without the numeric limits necessary to prevent harm, externalizing pollution costs onto the environment, wildlife, communities, and everyone else’s pocketbooks.
Repealing numeric standards and reverting to narrative standards is a giant step backwards that fails to hold polluters accountable and puts Montana’s finite water resources at increased risk of pollution, which in turn threatens fish and wildlife, world-class recreational opportunities, and Montana’s $1.3 billion fishing economy.
Issues with Nutrient Pollution:
Nutrient pollution is one of the most pervasive sources of water pollution in the state.
Nitrogen and phosphorus occur naturally in aquatic ecosystems, but too much can cause serious harm, fueling in algal blooms that degrade water quality and aquatic habitat, and can become toxic to fish, wildlife, and contaminate drinking water supplies.
Nutrients enter our waterways through fertilizer use, construction and stormwater runoff, and wastewater from septic systems and sewage treatment plants.
Nutrient pollution has already caused impairment in 35% of assessed river miles in the state.
The State of Montana’s replacement narrative standard, found in Administrative Rule 17.30.637, is vague, unenforceable, and has never been meaningfully implemented. In fact, over a decade ago the EPA determined that Montana’s narrative nutrient standard was inadequate to protect or restore water quality, but the Department of Environmental Quality is ignoring those findings. Because of these flawed narrative standards, last month nearly a thousand Montana citizens petitioned DEQ to pause all pollution permitting until a narrative nutrient replacement rule package is in place that provides a transparent mechanism for protecting and restoring waterway health in Montana.
Issues with Narrative Water Quality Standards:
Narrative standards are subjective and reactive, requiring visible pollution and therefore harm to occur before regulators take action to remedy the issue.
Narrative standards fail to hold point source polluters accountable for their pollution, create uncertainty about pollution control obligations, and undermine the use of best available science to protect water quality.
Narrative standards ignore the big picture and take a giant step backwards, leaving Montana ill-prepared to address pollution and protect waterway health.
Montana’s waterways are under growing threats, and the State’s failure to prioritize waterway health over polluters and EPA’s approval of unscientific rollbacks makes matters worse. The groups are taking the issue to court to stop this unlawful and unscientific rollback to protect Montana’s valued and finite water resources.