Clean Water? It’s Too Demanding and Expensive

There’s the old saw about obscenity: “I can’t define it, but I know it when I see it.”  Thanks to SB 358, enacted by the 2021 legislature and signed into law by the Governor, that’s close to the standard that the Department of Environmental Quality is now required to use for measuring water quality: “I can’t define it, but it looks OK to me.”

As a recent editorial penned by Bozeman Chronicle Editorial Board pointed out, Senate Bill 358, passed earlier this year, requires the state move from objective, “numeric” standards for determining water quality to amorphous, subjective “narrative” standards for that determination — essentially from measurable objective standards to something more ambiguous.

These water quality standards are important, because they regulate the flow of nutrients into rivers — things like nitrogen and phosphorus, pollutants that promote the growth of algae and other plant life that degrade water quality and fish habitat.

The Editorial Board notes that a 2021 DEQ report found that 53% of the state’s waters are already impaired (thanks to previous legislative enactments) by various pollutants, sediment or other causes—an alarming number.  So, it is difficult to argue that SB 358 is going to reduce this pollution.  Rather in all probability, because of the new “narrative” standards, chemical nutrient pollution is going increase and further degrade the water quality of Montana’s public waters and water supplies.

If we have learned anything from several years of pandemic, it should be that when politicians get involved, science is usually the first casualty. SB 358 is a poster child for that.  The new standards were adopted not to improve water quality, but rather because advocates for the change complained that numeric standards are too demanding and expensive to meet.

Most importantly, however, SB 358 has significant constitutional implications. Specifically, under Article II, section 3, Montanans have a fundamental, inalienable constitutional right “to a clean and healthful environment” and the right to seek “their safety, health, and happiness in all lawful ways.”

And to seal the deal on the protections of these, our Article II, section 3 rights, the Constitution goes even further. Article IX, section 1 mandates that “[t]he state and each person shall maintain and improve a clean and healthful environment for present and future generations.”  Sections (2) and (3) of this Article then go on to require the legislature to provide administration, enforcement and adequate remedies for its section (1) duty and to protect the environmental life support system from degradation and unreasonable depletion.

Obviously, clean water is crucial to our ability to exercise and enjoy our right to a clean and healthful environment and to seek safety, health, and happiness in all lawful ways.  We drink, cook with, bathe, recreate, fish and hunt waterfowl in and on water.

And just as obviously, SB 358 is not designed to maintain and improve a clean and healthful environment or protect water quality from degradation.  Indeed, SB 358 was crafted to allow precisely the opposite.  Clean water is just too demanding and expensive to maintain, much less improve.

Once again, as a result of laws passed by the last legislature, Montanans’ fundamental constitutional rights are being chipped away—the right of individual privacy, the right of suffrage free from government interference, and, here, the rights to a clean and healthful environment and to seek safety, health, and happiness in all lawful ways.

Indeed, our fundamental rights are being degraded—right along with our once clean waters.

As I started out, I stated that I know obscenity when I see it. And the degradation of our constitutional rights is obscene! There’s no other way to describe it.

If you agree, send your comments to DEQ’s comment website:

James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.