United States District Court, D. Montana, Great Falls Division
MORRIS UNITED STATES DISTRICT COURT JUDGE.
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.
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.
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.
Water Act Framework
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.
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).
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.
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.
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.
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.
Montanaâs Base WQS
Current Variance Standard
> 1 million gpd
< 1 million gpd
> 1 million gpd
< 1 million gpd