Court Remands General Nutrient Variance to State Agency to Revise Timeline

(July 31, 2019) - A federal district court issued a ruling July 16 in a case brought by environmental groups, which challenged the US Environmental Protection Agency’s (EPA’s) approval of Montana’s general nutrient variance for municipal dischargers.

The variance has been issued to 26 municipalities based on the determination that municipal treatment plants could not afford to meet Montana’s stringent water quality standards (WQS) for nitrogen and phosphorus. NACWA intervened in the litigation in 2016 to protect the availability of water quality variances nationwide.

In a March 2019 ruling, the court determined that EPA’s interpretation of its variance rule to allow consideration of cost—and approval of the Montana variance on that basis—is “reasonable and deserves deference.” However, the court ruled that the 17-year timeline of the variance was not appropriate and directed the parties to reach agreement on appropriate remedies including the timeline to reach the highest attainable condition (HAC).

The parties did not reach agreement, but filed briefs explaining their respective positions as directed by the court.  Without leave of the court and without any opportunity for the other parties to respond, the environmental plaintiff filed an expert report arguing that the HAC can be met in 4-6 years for mechanical plants and 1-7 years for lagoons, and that the State’s base WQS can be met by 2035.

In the most recent order, the judge recognized the reality that dischargers throughout Montana currently stand at different levels of attainment, but nevertheless deferred to the environmental group plaintiff’s timeline and remanded the variance to the state regulatory agency and EPA to set forth a reasonable timeline that begins with the relaxed criteria of the current variance standard and leads to compliance with Montana’s WQS in the time range proposed by plaintiff.

NACWA is conferring with EPA and the State of Montana to determine next steps and will report further developments to membership.

Please direct any questions or concerns to Amanda Waters, NACWA’s General Counsel.