Press Release

NACWA Joins Litigation with Significant Consequences for Public Utilities

Oct 14, 2016

October 14, 2016

Amanda Waters 
General Counsel
(202) 530-2758 

Washington, D.C. – The National Association of Clean Water Agencies (NACWA) has intervened in federal litigation challenging EPA’s approval of a general nutrient variance. In 2014, Montana promulgated numeric nutrient criteria (NNC) for phosphorus and nitrogen. Both EPA and the Montana Department of Environmental Quality (MTDEQ) understood that most National Pollutant Discharge Elimination System (NPDES) dischargers including Publicly Owned Treatment Works would be unable to meet the very low in-stream limits. Thus, at the same time MTDEQ submitted the criteria to EPA for approval, the State applied for a general variance. EPA approved both in February 2015. 

In May 2016 the Upper Missouri Waterkeeper filed litigation against EPA seeking to have the variance approval overturned. Without the variance, all NDPES dischargers would be required to comply with the State’s low in-stream nutrient criteria concentrations for phosphorus and nitrogen. 

Montana is the first state in the nation to develop scientifically based criteria for nitrogen and phosphorus to protect water quality with an achievable implementation strategy via a general variance. If the federal district court strikes down EPA’s approval of the variance, the precedent will have immediate impacts in Montana and could severely limit or eliminate the availability of water quality variances nationwide. A negative decision would have a chilling effect on other states that are contemplating general variances that may be needed by utilities. In addition, it would have impacts beyond nutrients, including in states that have already adopted extremely low water quality standards for toxics. 

NACWA’s intervention in the case secures its position as a party to the litigation to ensure that the variance approval is defended. MTDEQ, the Montana League of Cities and Towns, and several industry groups have also intervened in the litigation.



The National Association of Clean Water Agencies (NACWA) is the leading advocate for responsible national policies that advance clean water. NACWA represents the collective interests of America's clean water utilities nationwide – and their clear commitment to America's waters. For over 40 years, NACWA has been the clean water community's voice in Congress, at the U.S. Environmental Protection Agency and other federal agencies, as well as in the media and in the courts. To learn more about NACWA visit us at www.nacwa.org.

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