NACWA Files Opening Brief in Key 9th Circuit Montana Variance Litigation

(June 24, 2020) – This week, NACWA joined with the Montana League of Cities and Towns (League) in filing its opening brief before the U.S. Court of Appeals for the Ninth Circuit in the case of Upper Missouri Waterkeeper v. EPA. This litigation is being closely watched by state and federal regulators, as it could have significant ramifications on the U.S. Environmental Protection Agency’s (EPA) ability to approve water quality standards variances for municipalities both in Montana and nationwide.   

In the case, NACWA, the League, the Montana Department of Environmental Quality (MDEQ), and EPA, represented by the U.S. Department of Justice, are all appealing a district court decision holding that Montana’s nutrient variance for municipal dischargers must require immediate compliance with the “highest attainable condition” and ultimate compliance with the State’s underlying numeric nutrient criteria by the end of its term.   

NACWA’s brief explains that under EPA’s water quality standards variance process, states may adopt modified water quality standards, subject to EPA approval, that apply in place of the underlying standards for certain dischargers under limited circumstances. Those modified standards, which in the present case were lawfully developed for nutrient discharges from Montana municipalities, must reflect the “highest attainable condition” throughout the terms of the variance, and are the standards that must be achieved by the end of the variance’s term.   

NACWA’s brief argues that because EPA’s variance process is specifically designed for situations where the underlying water quality standards are not attainable, the district court’s ruling that variances must require attainment of those underlying standards would effectively negate the use of this critical Clean Water Act tool that municipalities have relied on for decades to make significant water quality improvements nationwide.   

NACWA’s brief also faults the district court for relying on an “expert report” in crafting its remedy that was submitted by the plaintiffs late in the litigation, and was not a part of the administrative record supporting the nutrient variance or appropriately analyzed by either EPA or MDEQ.   

Briefing on the case will continue in the coming months, and NACWA anticipates that oral argument will be scheduled later this year. For questions concerning the litigation of NACWA’s brief, please contact NACWA’s Chief Legal Counsel, Amanda Aspatore.