• 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)

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