United States District Court, D. Montana, Great Falls Division
MORRIS, UNITED STATES DISTRICT COURT FUDGE
Upper Missouri Waterkeeper (“Waterkeeper”) moves
for summary judgment in its First Amended Complaint. (Doc.
148.) Waterkeeper asserts two causes of action. Waterkeeper
first alleges that EPA's approval of Montana's
numeric nutrient criteria for nitrogen and phosphorous,
contained in the variance, violates 33 U.S.C. § 1313.
(Doc. 130 at 17-18.) Waterkeeper next contends that EPA's
approval of the variance proves both contrary to the evidence
and arbitrary and capricious. Id. at 18-19.
Waterkeeper requests that the Court vacate EPA's approval
of the variance and award costs and attorney's fees.
Id. at 20.
United States Environmental Protection Agency
(“EPA”) and Scott Pruitt, EPA Administrator, and
Defendant-Intervenors State of Montana Department of
Environmental Quality (“DEQ”), Treasure State
Resources Association of Montana, Montana League of Cities
and Towns, and National Association of Clean Water Agencies
(collectively “Defendants”), also have moved for
summary judgment to uphold the approval. (Docs. 151, 155,
159, 161, 165.) The Court held a hearing on the cross-motions
for summary judgment on December 12, 2018, in Great Falls,
adopted, and EPA approved, base numeric nutrient water
quality standards (“WQS”) for nutrient pollutants
in 2015. DEQ set forth Montana's original WQS in what DEQ
defined as “Circular 12-A” (hereafter
“Montana's Base WQS”). Montana's Base WQS
apply to the discharge of nitrogen and phosphorus in
applicable Montana waters. DEQ developed standards for each
of Montana's “wadeable streams” and grouped
these standards by ecoregions. AR-1221. Montana's Base
WQS serve to protect all designated uses, including health,
fishing, and recreation in most Montana waters.
Base WQS sets pollutant concentration limits, geographical
parameters, and seasonal timeframes to which the standards
apply. AR-1222-23. The criteria primarily apply from July
until the end of September of each year. Id. Numeric
standards in Montana's Base WQS for phosphorus that apply
to Montana's wadeable streams range from 25 micrograms
per liter (“µg/l”) to 150 µg/l.
Id. Total nitrogen levels range from 250 µg/l
to 1, 300 µg/l. Id. Montana became a national
leader in the development of numeric nutrient criteria in
adopting the stringent requirements of Montana's Base
simultaneously adopted a “variance” from
Montana's Base WQS known as “Circular 12-B”
(hereafter the “Original Variance Standard”). DEQ
developed the Original Variance Standard in recognition of
the challenges in meeting the stringent requirements of
Montana's Base WQS. DEQ relaxed the criteria for
dischargers. The Original Variance Standard provided a
relaxed limit of 1, 000 µg/l of total phosphorus and
10, 000 µg/l of total nitrogen for larger plants
discharging more than one million gallons of effluent per day
(“gpd”). AR-12232. The Original Variance Standard
additionally placed a limit of 2, 000 µg/l of total
phosphorus and 15, 000 µg/l of total nitrogen for
smaller plants discharging less than one million gpd.
developed the Original Variance Standard based on DEQ's
determination that many dischargers could not feasibly meet
the high costs associated with implementation of
Montana's Base WQS. DEQ allowed the Original Variance
Standard to last up to twenty years from the date of adoption
pursuant to Montana law. DEQ claims that the Original
Variance Standard allowed time for improvements from current
conditions to work toward the stringent numeric nutrient
criteria contained in Montana's Base WQS. EPA approved
Montana's Base WQS and the Original Variance Standard in
challenged the Original Variance Standard in this Court in
May 2016. Montana law requires DEQ and EPA to review the
variance every three years. Mont. Code Ann. §
75-5-313(8). DEQ began the process of amending the Original
Variance Standard during the pendency of the May 2016
lawsuit. EPA approved what is known as “Amended
Circular 12-B” (hereafter the “Current Variance
Standard”) in October of 2017, pursuant to its first
similarly approved the seventeen-year period remaining on the
variance's twenty-year timeline. The first triennial
review did not alter the criteria in Montana's Base WQS.
AR-20649. The Current Variance Standard improves upon the
Original Variance Standard by providing a tighter limit of
300 µg/l of total phosphorus and 6, 000 µg/l of
total nitrogen for larger plants discharging more than one
million gpd. AR-12232. The Current Variance Standard
additionally placed a limit of 1, 000 µg/l of total
phosphorus and 10, 000 µg/l of total nitrogen for
smaller plants discharging less than one million gpd.
Id. The Current Variance Standard places stronger
limits on dischargers than the limits of the Original
Variance Standard. The Current Variance Standard continues to
fall short, however, of the criteria contained in
Montana's Base WQS.
Court held a hearing to discuss the impact of the Current
Variance Standard on Waterkeeper's original Complaint on
June 28, 2017. (Doc. 99.) The parties determined that the
Current Variance Standard rendered the Original Variance
Standard inapplicable to the proceeding. The Court granted
Waterkeeper leave to amend its Complaint to address the
Current Variance Standard and the updated posture that it
presented to the litigation. (Doc. 129.)
Current Variance Standard applies to thirty-six municipal
dischargers. DEQ premised the Current Variance Standard upon
“widespread economic and social impact” to
Montana communities associated with the need to comply with
the WQS. DEQ and EPA determined that the cost of implementing
the technology required to meet Montana's Base WQS would
cause these widespread economic and social impacts.
Amended Complaint raises the same essential challenges to
EPA's approval of the Current Variance Standard.
Waterkeeper alleges (1) that the language of the CWA does not
allow for the consideration of economic and social impacts
(i.e. “costs”) in setting WQS; and (2) that the
Current Variance Standard effectively replaces Montana's
Base WQS. Waterkeeper argues that the seventeen-year timeline
requires Defendants to meet only the more relaxed Current
Variance Standard, rather than to meet the more stringent
criteria in Montana's Base WQS. Defendants assert that
DEQ based the Current Variance Standard upon a permissible
interpretation of the CWA and that the Current Variance
Standard does not replace Montana's Base WQS.
AND REGULATORY BACKGROUND
Water Quality Standards
seeks “to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters.”
33 U.S.C. § 1251(a). The CWA establishes a partnership
between states, territories, authorized Tribes, and the
federal government to achieve that goal. Arkansas v.
Oklahoma, 503 U.S. 91, 101 (1992). One “national
goal” to meet the CWA's objectives is that
“wherever attainable, an interim goal of water quality
which provides for the protection and propagation of fish,
shellfish, and wildlife and provides for recreation in and on
the water” be achieved. 33 U.S.C. § 1251(a)(2).
requires that WQS be established “to protect the public
health or welfare, enhance the quality of water, and serve
the purposes of [the CWA].” 33 U.S.C. §
1313(c)(2)(A). WQS generally consist of three elements: (1) a
designated use for the water body at issue; (2) water quality
criteria that express the concentrations or levels of
pollutants that may be present in the water while still
supporting the designated use; and (3) an anti-degradation
policy. 33 U.S.C. 1313(c)(2); CWA § 303(d)(4)(B); 33
U.S.C. § 1313(d)(4)(B); 40 C.F.R. § 131.3(i).
directs individual states to take responsibility for
prevention, reduction, and elimination of pollution within
their waterways. 33 U.S.C. § 1251(b). This duty carries
the obligation to promulgate WQS consistent with the purposes
and requirements of the CWA. The CWA mandates that states
periodically adopt and revise WQS. 33 U.S.C. §
1313(c)(1). In adopting or revising WQS, states must consider
the particular water body's “use and value for
public water supplies, propagation of fish and wildlife,
recreational purposes, and agricultural, industrial, and
other purposes.” 33 U.S.C. § 1313(c)(2)(A).
also directs EPA to review, and approve or disapprove, a
state's proposed standards. Id. A state's
proposed standards take effect upon EPA's approval. EPA
must intervene if it disapproves proposed standards and a
state fails to develop standards that meet the requirements
of the CWA. 33 U.S.C. § 1313(c)(4).
identify designated uses of each waterbody. States establish
designated uses based on those specified in 33 U.S.C. §
1251(a)(2). Section 1251(a)(2) identifies these designated
uses as “fish, shellfish, and wildlife, and . . .
recreation in and on the water.” Id. States
establish designated uses “taking into consideration
their use and value for public water supplies, propagation of
fish and wildlife, recreational purposes, and agricultural,
industrial, and other purposes, and also taking into
consideration their use and value for navigation.” 33
U.S.C. § 1313(c)(2)(A). States may demonstrate
unattainability through a “use attainability
analysis” for the uses designated in 33 U.S.C. §
regulations define a variance as a “time-limited
designated use and criterion for a specific pollutant(s) or
water quality parameter(s) that reflect the ‘highest
attainable condition' during the term of the WQS
variance.” 40 C.F.R. § 131.3(o). A state seeking a
variance must demonstrate the need and justification for the
term of the variance. 40 C.F.R. § 131.14(b)(2).
EPA's regulations provide several bases for demonstrating
a need for a variance, including “widespread economic
and social impacts.” 40 C.F.R. §§
131.14(b)(2); 131.10(g). Montana allows a variance to last
for a period of up to twenty years from the date of adoption.
Mont. Code Ann. § 75-5-313(8). Montana also requires
that a variance be reviewed every three years from the date
of adoption to ensure that it remains justified. Mont. Code
Ann.§ 75-5-313(7), (8).
Administrative Procedure Act (“APA”) governs the
Court's review of EPA's approval of the Current
Variance Standard. The APA provides that a court shall set
aside a final agency action that it deems “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). An
agency acts contrary to the law when it fails to abide by and
implement the direction and intent of Congress or when it
acts contrary to its own rules and requirements. Chevron
USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 842-43 (1984); Christopher v. SmithKline Beecham
Corp., 567 U.S. 142, 154 (2012).
agency rule proves arbitrary and capricious in the following
circumstances: (1) where the agency “has relied on
factors which Congress has not intended it to
consider;” (2) where the agency “entirely failed
to consider an important aspect of the problem;” (3)
where the agency “offered an explanation for its
decision that runs counter to the evidence before the agency,
or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.”
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983); see also Ranchers
Cattlemen Action Legal Fund United Stockgrowers of
Am. v. U.S. Dep't of Agriculture, 415 F.3d 1078,
1093 (9th Cir. 2005).
have interpreted the APA standard to be “highly
deferential, presuming the agency action to be valid and
affirming the agency action if a reasonable basis exists for
its decision.” Bahr v. U.S. EPA, 836 F.3d
1218, 1229 (9th Cir. 2016) (quoting Ranchers Cattlemen
Action Legal Fund United Stockgrowers of Am. v. U.S.
Dep't of Agriculture, 499 F.3d 1108, 1115 (9th Cir.
2007)). An agency action will be upheld as long as a rational
connection exists “between the facts found and the
conclusions made.” Barnes v. U.S. Dep't of
Transp., 655 F.3d 1124, 1132 (9th Cir. 2011). Courts owe
their “highest deference” to the agency's
“technical analyses and judgments within its area of
expertise.” Nat. Res. Def. Council, Inc. v.
Pritzker, 828 F.3d 1125, 1139 (9th Cir. 2016)
(quoting League of Wilderness Defs. Blue Mtns.
Biodiversity Proj. v. Allen, 615 F.3d 1122, 1131 (9th
“defer to an agency's interpretations of its own
regulation, advanced in a legal brief, unless that
interpretation is ‘plainly erroneous or inconsistent
with the regulation.'” Chase Bank USA, N.A. v.
McCoy, 562 U.S. 195, 208 (2011) (quoting Auer v.
Robbins, 519 U.S.452, 461 (1997)). An agency's
interpretation “need not be the only possible reading
of a regulation - or even the best one - to prevail.”
Decker v. NW. Envtl. Def. Ctr., 568 U.S. 597, 613
judgment would be appropriate if there exists no genuine
issue of material fact and the moving party would be entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). This case involves review of final agency action and
an administrative record. It presents no genuine issues of
material facts, and, therefore, it would be appropriate to
resolve the case on summary judgment. Forest Serv.
Emp's for Envtl. Ethics v. U.S. Forest Serv., 726
F.Supp.2d 1195, 1207 (D. Mont. 2010); see also Occidental
Eng'g Co. v. I.N.S., 753 F.2d 766, 770 (9th Cir.
Whether the Current Variance Standard Conforms with the
Requirements of the CWA
first argues that the use of a variance indirectly downgrades
the numeric criteria in Montana's Base WQS by injecting
the consideration of costs. (Doc. 150 at 20-21.) Waterkeeper
asserts that CWA's plain language clearly requires the
consideration only of “science-based ...