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Upper Missouri Waterkeeper v. United States Environmental Protection Agency

United States District Court, D. Montana, Great Falls Division

December 20, 2019

UPPER MISSOURI WATERKEEPER, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and ANDREW WHEELER, Administrator, United States Environmental Protection Agency, Defendants, and STATE OF MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, TREASURE STATE RESOURCES ASSOCIATION OF MONTANA, MONTANA LEAGUE OF CITIES AND TOWNS, and NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES Defendants and Intervenors.

          ORDER

          BRIAN MORRIS UNITED STATES DISTRICT COURT JUDGE.

         Plaintiff Upper Missouri Waterkeeper (“Waterkeeper”) filed an Amended Complaint alleging that Defendants United States Environmental Protection Agency and Andrew Wheeler, Administrator, United States Environmental Protection Agency (collectively “EPA”) had violated the Clean Water Act (CWA). The State of Montana Department of Environmental Quality, Treasure State Resources Association of Montana, Montana League of Cities and Towns, and National Association of Clean Water Agencies were named as Intervenor-Defendants. (See id.) All parties filed a motion or cross-motion for summary judgment. (See Doc. 148, 151, 155, 159, 161, 165.) The Court issued an order granting summary judgment, in part, in favor of Waterkeeper. (Doc. 177.) On order of the Court, all the parties filed briefing on the proper remedy. The Court issued an order on the remedy (Doc. 184) and then another order (Doc. 186) that directed the Clerk to enter Final Judgment in this matter.

         EPA then filed a motion (Doc. 188) under Federal Rule of Civil Procedure 59 (“Rule 59”) to alter or amend the Court's final judgment. They ask this Court to correct the “clear error” it made in granting partial summary judgment in favor of Waterkeeper.

         Legal Standard

         Rule 59 provides a court with discretion to alter or amend its own judgment. This discretion should be used sparingly. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003). A court should disregard the interest in finality only in cases of newly discovered evidence or clear error. Id.

         Clean Water Act Framework

         The Clean Water Act (CWA) establishes a partnership between states, territories, authorized tribes, and the federal government with the goal “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). As a means of accomplishing this goal, the CWA requires states to promulgate water quality standards (WQS) subject to federal approval. 33 U.S.C. § 1313 et seq. 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). These standards must “protect the public health or welfare, enhance the quality of water, or serve the purposes of [the CWA].” Id. In short, states need to explain what the water will be used for and how low the state will keep levels of pollutants to maintain that use.

         States may obtain variances with the approval of the EPA that allow a permitee to pollute at levels above the WQS. The 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).

         Background

         The Court will give just a brief refresher here, having thoroughly covered the factual history in a previous order from this litigation. See Upper Mo. Waterkeeper v. E.P.A., 377 F.Supp.3d 1156, 1159-60 (D. Mont. 2019). Montana DEQ adopted, and EPA approved, base numeric nutrient WQS for nutrient pollutants. 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. Montana's Base WQS serve to protect all designated uses, including health, fishing, and recreation in most Montana waters. Montana's Base WQS set a range of 25 micrograms per liter (“μg/l”) to 150 μg/l of phosphorus that apply to Montana's wadeable streams. Total nitrogen levels range from 250 μg/l to 1, 300 μg/l.

         DEQ simultaneously adopted a “variance” from Montana's Base WQS known as “Circular 12-B” (hereafter the “Original Variance Standard”). This variance contained relaxed criteria for dischargers. 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 2015.

         Montana law requires DEQ and EPA to review the variance every three years. Mont. Code Ann. § 75-5-313(8). As a part of that review process, DEQ chose to amend the Original Variance Standard. EPA approved what is known as “Amended Circular 12-B” (hereafter the “Current Variance Standard”) in October of 2017.

         The Current Variance Standard provides a 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. These numbers are summarized in the table below.

Phosphorous (μg/l)

Nitrogen (μg/l)

Montana’s Base WQS

25-150

250-1,300

Current Variance Standard

> 1 million gpd < 1 million gpd > 1 million gpd < 1 million gpd
300 1,000 6,000 10,000

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