• Mark Ryan

Montana WQS Case Gets Briefed in 9th Cir.

EPA filed its opening brief on June 9 in the appeal of the 2019 Upper Missouri Waterkeeper decision out of the District of Montana. See my case summary below. EPA approved Montana's WQS variances for nutrients for 36 POTWs for up to 10 and 17 years depending on wether they were lagoon or mechanical systems, and the enviros challenged.

This will be an interesting case to watch. Nutrients are a big problem in the U.S. POTWs are being forced to spend extraordinary amounts of money to reduced nutrient loading, often to the microgram/liter level, and often because of background nutrient pollution from unregulated ag runoff. The long variance periods in this case likely reflect funding problems for the munis to upgrade their plants, which seems reasonable. On the other hand, the CWA is supposed to ensure that WQS are met, so there is a significant tension here that the court will have to work out. And this is a big, nationwide issue. When I was at EPA, we really struggled with nutrient pollution issues. There are no easy answers. If you want to look the case up on Pacer, the case no. is 20-35136 (consolidated with 19-35898, 19-35899, 20-35135 and 20-351367)

Upper Missouri Waterkeeper v. EPA, 2019 WL 7020145 (D. Mt. 2019) (denying motion for reconsideration, held that water quality standard variance for nutrients approved for Montana wrongly did not require compliance with the “highest attainable condition” during the variance, and EPA’s interpretation of 40 C.F.R. § 131.3(o) would allow the variance to continue forever without ever achieving the designated uses of the water body; the CWA does not allow for indefinite variances from water quality standards)

If you would like to receive email notifications of new blogposts, go to the signup button above, leave your email, and you'll be alerted to updates.

29 views0 comments

Recent Posts

See All

New 2020 WOTUS Rule Challenge Filed

Two New Mexico tribes filed a new challenge to the 2020 WOTUS rule in the D. of New Mexico on March 29. This complaint sets itself apart from many of the others in that it asserts a failure to abide b

The CWA Blog is Retiring in June

Thirty-three years of practicing law is enough, and I'm retiring this year. Unfortunately, that also means the end of the CWA Blog. I've decided, after careful consideration, to send the Blog off into

Sackett Update

You will recall that the latest chapter of the long Sackett saga is that EPA filed a motion to dismiss the appeal as moot given that the old WOTUS rule, which is the basis of the Sackett challenge, is

© 2016 by Ryan & Kuehler PLLC.

  • Facebook Basic Black
  • LinkedIn Basic Black
  • Twitter Basic Black