Mont. Code Ann. » TITLE 75. ENVIRONMENTAL PROTECTION · CHAPTER 5. WATER QUALITY · Part 3. Classification and Standards
Montana Code Annotated

Mont. Code Ann. § 75-5-303 (2026)

Nondegradation Policy

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 75
  3. CHAPTER 5
  4. Part 3
  5. 75-5-303 Nondegradation policy

TITLE 75. ENVIRONMENTAL PROTECTION

CHAPTER 5. WATER QUALITY

Part 3. Classification and Standards

Nondegradation Policy

75-5-303. Nondegradation policy. (1) Existing uses of state waters and the level of water quality necessary to protect those uses must be maintained and protected.

(2) Unless authorized by the department under subsection (3) or exempted from review under 75-5-317, the quality of high-quality waters must be maintained.

(3) The department may allow lower water quality through a feasibility allowance in high-quality waters when it has been affirmatively demonstrated by a preponderance of evidence to the department that:

(a) a feasibility allowance is necessary because there are no economically, environmentally, and technologically feasible modifications to the proposed project that would result in no degradation;

(b) the proposed project will result in important economic or social development in the area that the high-quality waters are located;

(c) existing and anticipated use of state waters will be fully protected; and

(d) the least degrading water quality protection practices determined by the department to be economically, environmentally, and technologically feasible will be fully implemented by the applicant prior to and during the proposed activity.

(4) The department shall issue a preliminary decision either denying or authorizing the feasibility allowance and shall provide public notice and a 30-day comment period prior to issuing a final decision. The department's preliminary and final decisions must include:

(a) a statement of the basis for the decision; and

(b) a detailed description of all conditions applied to a feasibility allowance, including, when applicable, monitoring requirements, required water protection practices, reporting requirements, effluent limits, designation of the mixing zones, the limits of the authorized feasibility allowance, and methods of determining compliance with the feasibility allowance.

(5) An interested person wishing to challenge a final department decision may request a hearing before the board within 30 days of the final department decision. The contested case procedures of Title 2, chapter 4, part 6, apply to a hearing under this section.

(6) Periodically, but not more often than every 5 years, the department may review feasibility allowances for state waters. Following the review, the department may, after timely notice and opportunity for hearing, modify the feasibility allowance if the department determines that an economically, environmentally, and technologically feasible modification to the development exists. The decision by the department to modify a feasibility allowance may be appealed to the board.

(7) The department may not issue a feasibility allowance for state waters that are classified as outstanding resource waters.

(8) The department shall adopt rules to implement this section.

History: En. Sec. 6, Ch. 21, L. 1971; amd. Sec. 2, Ch. 506, L. 1973; amd. Sec. 62, Ch. 349, L. 1974; amd. Sec. 5, Ch. 455, L. 1975; amd. Sec. 3, Ch. 444, L. 1977; R.C.M. 1947, 69-4808.2(1)(c)(ii), (1)(c)(iii); amd. Sec. 3, Ch. 595, L. 1993; (7)En. Sec. 5, Ch. 595, L. 1993; amd. Sec. 2, Ch. 495, L. 1995; amd. Sec. 5, Ch. 501, L. 1995; amd. Sec. 36, Ch. 324, L. 2021; amd. Sec. 3, Ch. 712, L. 2025.

Notes of Decisions
Cited in 10 cases (3 in the last 5 years), 1999–2025 · leading case: Montana Env't Info. Ctr. v. Dep't of Env't Quality, 1999 MT 248 (Mont. 1999).
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Montana Env't Info. Ctr. v. Dep't of Env't Quality, 1999 MT 248 (Mont. 1999). · cites it 36× “715(1)(b), ARM that discharges of that nature are significant enough to require nondegradation review pursuant to § 75-5-303, MCA. Plaintiffs *1242 request that this Court remand to the District Court for a determination of whether exemption from nondegradation review is…”
Clark Fork Coalition v. Montana Dep't of Env't Quality, 2008 MT 407 (Mont. 2008). · cites it 10× “¶ 33 Montana law establishes two exceptions to the rule that proposals to discharge into Tier 2 waters must undergo nondegradation review under § 75-5-303, MCA. First, the Montana legislature has established categories of activities that are statutorily exempt from…”
Montana Trout Unlimited v. Beaverhead Water Co., 2011 MT 151 (Mont. 2011). · cites it 4× “3 (all waters within the state are the property of the state for the use of its people); § 75-5-303, MCA (existing water uses and the level of water quality necessary to protect those uses must be maintained and protected, including existing and anticipated uses); § 75-5-101,…”
Save Our Cabinets v. United States Dep't of Agric., 254 F. Supp. 3d 1241 (D. Mont. 2017). · cites it 3× “” Mont. Code Ann. § 75-5-303 (the “nondegradation” standard).”
N. Cheyenne Tribe v. Montana Dep't of Env't Quality, 2010 MT 111 (Mont. 2010). · cites it 2× “12 (a)(2); § 75-5-303, MCA; Admin. R. M. 17.30.701 et seq.”
Park Co. Env't v. DEQ, 2020 MT 303 (Mont. 2020). · cites it 2× “See § 75-5-303, MCA. In excluding water discharges from well tests from review, the statute makes it impossible for the State to “prevent unreasonable depletion and degradation of natural resources” as required by Article IX, Section 1(3), of the Montana Constitution.”
Trout Unlimited v. DNRC, 2025 MT 1 (Mont. 2025). · cites it 2× “See § 75-5-303, MCA (“Existing uses of state waters and the level of water quality necessary to protect those uses must be maintained and protected.”
Meic v. Deq, 2020 MT 288 (Mont. 2020). · cites it 11× “]” Section 75-5-303(1), MCA (1989). ¶6 In 1991, after constructing around 14,000 feet of the Libby Creek adit, Noranda ceased construction of the adit due to elevated nitrate concentration in the surface water and low metal prices.”
MEIC v. Westmoreland Rosebud Mining, 2023 MT 224 (Mont. 2023). · cites it 2× “6 (citing § 75-5-303, MCA; Admin. R. M. 17.30.701–718).”
MEIC v. Westmoreland Rosebud Mining (Mont. 2023). · cites it 2× “6 (citing § 75-5-303, MCA; Admin. R. M. 17.30.701–718).”
— Mont. Code Ann. § 75-5-303(1) — 2 cases
Save Our Cabinets v. United States Dep't of Agric., 254 F. Supp. 3d 1241 (D. Mont. 2017). “” Mont. Code Ann. § 75-5-303 (the “nondegradation” standard).”
Meic v. Deq, 2020 MT 288 (Mont. 2020). “]” Section 75-5-303(1), MCA (1989). ¶6 In 1991, after constructing around 14,000 feet of the Libby Creek adit, Noranda ceased construction of the adit due to elevated nitrate concentration in the surface water and low metal prices.”
— Mont. Code Ann. § 75-5-303(3) — 3 cases
Montana Env't Info. Ctr. v. Dep't of Env't Quality, 1999 MT 248 (Mont. 1999). “715(1)(b), ARM that discharges of that nature are significant enough to require nondegradation review pursuant to § 75-5-303, MCA. Plaintiffs *1242 request that this Court remand to the District Court for a determination of whether exemption from nondegradation review is…”
Clark Fork Coalition v. Montana Dep't of Env't Quality, 2008 MT 407 (Mont. 2008). “¶ 33 Montana law establishes two exceptions to the rule that proposals to discharge into Tier 2 waters must undergo nondegradation review under § 75-5-303, MCA. First, the Montana legislature has established categories of activities that are statutorily exempt from…”
Meic v. Deq, 2020 MT 288 (Mont. 2020). “]” Section 75-5-303(1), MCA (1989). ¶6 In 1991, after constructing around 14,000 feet of the Libby Creek adit, Noranda ceased construction of the adit due to elevated nitrate concentration in the surface water and low metal prices.”
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