Clean Water Current

(December 18, 2018) - The federal district judge presiding over the challenge to EPA’s approval of Montana’s general nutrient variance heard oral argument on cross motions for summary judgment on December 12.

NACWA participated in the hearing and provided an essential national perspective on the importance of general variances. Montana’s general variance approval needs to be upheld so that it can serve as a model for other states to follow when those states adopt water quality standards that are recognized as unattainable in the near term by a group of dischargers.

In 2014, Montana promulgated numeric nutrient criteria (NNC) for phosphorus and nitrogen. Both the EPA and the Montana Department of Environmental Quality (MTDEQ) understood that most National Pollutant Discharge Elimination System (NPDES) dischargers would be unable to meet the very low in-stream limits.  Accordingly, at the same time MTDEQ submitted the criteria to EPA for approval, the State also applied for a general variance. 

EPA approved both in February 2015 and as part of the triennial variance review, EPA approved a new general variance in October 2017.  An environmental activist group, the Upper Missouri Waterkeeper, seeks to have EPA’s approval overturned as arbitrary and capricious and an abuse of discretion under the Administrative Procedure Act.  Without the variance, all NDPES dischargers would be required to immediately comply with the State’s low in-stream nutrient criteria concentrations for phosphorus and nitrogen.

NACWA intervened in the case, represented by Association Legal Affiliate Barnes & Thornburg, and is working with utility leaders in Montana to ensure their interests – and those of other clean water utilities that may need to rely on variances in the future – are protected. 

EPA currently embraces a cooperative federalism approach to NNC; states take the lead in promulgating the criteria but also have the option to use variances to provide time for implementation.  This approach fails if variances in most or every state are challenged by environmental groups and struck down by the courts.  Thus, national implications are not just on the viability of variances for nutrients, but the viability of EPA’s entire nutrient approach with the states.  If the use of variances is not available to EPA, they may be left with no option but to promulgate federal NNC.

The case is fully briefed, and a ruling is expected in the coming months.  More information can be found on NACWA’s litigation tracking page.