(October 23, 2019) – In current litigation challenging EPA's approval of the Montana nutrient variance, EPA (through the Department of Justice) has filed a motion under Federal Rule 59(e), asking the district court judge to amend his judgment in the case.
The basis for the motion is that the judge's earlier decisions were legally incorrect on two key issues: the requirements that a discharger under the variance must meet during the variance term (as part of the "highest attainable condition" or HAC requirement) and the requirements that must be met at the end of the variance.
These claims by EPA/DOJ are consistent with the NACWA position that the judge committed legal error on both of those issues. The Association has been actively involved in the litigation and has been in close contact with EPA and DOJ personnel regarding these issues since the judge issued his judgment.
Now that the motion has been filed, the time for appealing the judge's decisions is extended until he rules on the new motion. The next step as to the EPA/DOJ motion is for the plaintiffs to respond, after which NACWA and the other parties can file replies. In the meantime, NACWA continues to move forward with its plan to appeal the judge's decisions to the Ninth Circuit, and to request that the judge stay his judgment until the appeal is concluded. NACWA will be coordinating its next steps with other parties in the case, including EPA/DOJ, the State, and the Montana League of Cities and Towns.
In a related legal development, the Mayor of the County of Maui, Hawaii announced that he will proceed with oral arguments before the Supreme Court, scheduled for Nov. 6, in litigation over whether the transmittal of pollutants via groundwater can trigger Clean Water Act liability. The Maui County Council had previously voted to settle the case, but the Mayor determined he still has the authority to proceed with the litigation. NACWA has been an active participant in the case in support of its utility member in Maui, including filing a brief with the Supreme Court.
Members with any questions about these litigation matters can contact Amanda Waters
, NACWA’s General Counsel.