NACWA Leads Appeal of Montana Nutrient Variance Decision
(October 30, 2019) – NACWA and the Montana League of Cities and Towns (the League) filed an appeal with the US Court of Appeals for the Ninth Circuit of the March and July federal district court rulings in a case brought by an environmental group challenging the EPA’s approval of Montana’s general nutrient variance for municipal dischargers.
NACWA and the League also filed a motion to stay the district court judge’s rulings pending the appeal. A state industry group - Treasure State Resources Association of Montana – is also appealing due to impacts on industrial dischargers.
The March order remanded the matter to the Montana Department of Environmental Quality (MDEQ) and partially vacated the current variance standard with instructions to MDEQ to set forth a timeline that begins with the current standard and works toward Montana’s very low in-stream base water quality standards. The July order then directed MDEQ to revise the current variance standard using the environmental Plaintiff’s timeframe for the variance term. Consequently, the July order directs a predetermined outcome that renders the rulemaking process meaningless.
Unless a stay is issued, MDEQ is required to promulgate a revised rule adopting Plaintiff’s variance timeline by November 13. NACWA is arguing that an expedited stay pending appeal is warranted to prevent Montana clean water utilities from suffering irreparable harm by having to expend significant and unrecoverable resources to comply with a revised variance rule that is likely invalid.
NACWA is coordinating with EPA and the US Department of Justice; all agree that the district court judge committed legal error on these critical issues. NACWA remains hopeful that EPA will join the appeal. EPA’s Rule 59(e) motion asking the district court judge to amend his judgment in the case is also pending.
The NACWA/League opening brief in the appeal will be filed by February 3, 2020. Please direct any questions or concerns to Amanda Waters, NACWA’s General Counsel.