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NACWA Moves for Stay of Court Order Compelling New Municipal Nutrient Variance

Dec 18, 2020

(December 18, 2020) - NACWA and the Montana League of Cities and Towns (League) filed a brief last week asking the U.S. District Court for the District of Montana to stay its recent order compelling the State of Montana to adopt a new compliance timeline for its nutrient variance for municipal dischargers despite the appeals over that very timeline from the State of Montana, NACWA, the League, and the U.S. Department of Justice (DOJ) currently pending before the U.S. Court of Appeals for the Ninth Circuit. 

The District Court last year held that, while variances can be lawfully adopted to address economic considerations, a variance must ultimately require compliance with the underlying water quality criteria by the end of its term. NACWA and the other parties appealed that decision, and the issues on appeal have been fully briefed to the Ninth Circuit.

However, without being asked by any of the parties, the District Court recently moved to consolidate NACWA’s litigation with other tangentially related litigation, and to compel Montana to engage in a rulemaking to adopt a new variance which ultimately requires compliance with stringent numeric nutrient criteria on a schedule proposed by the environmental plaintiffs and adopted by the District Court. 

NACWA and the League’s brief asks the District Court to halt that order in light of the irreparable harm adoption of such a variance will have on municipal dischargers, who would be forced to comply with an overly stringent variance that the State, DOJ and public clean water community all contend does not comport with the U.S. Environmental Protection Agency’s water quality standards regulations. The brief also argues that, because the issues are now in front of the Ninth Circuit, the District Court no longer has jurisdiction to compel the State to take such actions. 

Montana is also seeking a stay of the Court’s order.

NACWA anticipates that the Ninth Circuit will schedule oral argument on the pending appeals in early 2021. In the interim, we will continue to keep members apprised of any important developments in this procedurally complex litigation as they occur. Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions.  

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