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Upper Missouri Waterkeeper v. EPA, US District Court, Montana (Case 4:16-cv-00052)


Upper Missouri Waterkeeper v. EPA, US District Court, Montana (Case 4:16-cv-00052)

On October 13, 2016, a federal district court in Montana granted NACWA’s Motion to Intervene in litigation challenging EPA’s approval of a general nutrient variance.  


In 2014, Montana promulgated numeric nutrient criteria (NNC) for phosphorus and nitrogen. Both the U.S. Environmental Protection Agency (EPA) and the Montana Department of Environmental Quality (MTDEQ) understood that most National Pollutant Discharge Elimination System (NPDES) dischargers would be unable to meet the very low in-stream limits.  Thus, at the same time MTDEQ submitted the criteria to EPA for approval, the State also applied for a general variance.  EPA approved both in February 2015.

In May 2016, an environmental activist group filed litigation against EPA challenging the approval of the variance.  The Upper Missouri Waterkeeper seeks to have EPA’s approval overturned as arbitrary and capricious and an abuse of discretion under the Administrative Procedure Act.  Without the variance, all NDPES dischargers would be required to comply with the State’s low in-stream nutrient criteria concentrations for phosphorus and nitrogen.

Montana is the first state in the nation to develop scientifically based criteria for nitrogen and phosphorus to protect water quality with an achievable implementation strategy via a general variance.

Montana General Nutrient Variance

The Montana general nutrient variance (see pp. 13-25) is not waterbody or permittee specific but rather applies to all NPDES permittees discharging to the State’s wadeable streams and certain additional specified waters.  The U.S. Environmental Protection Agency (EPA) encourages the use of multiple discharger variances to streamline the process where the state can demonstrate that the designated use or criterion is unattainable as it applies to multiple permittees because they are experiencing challenges in meeting their Water Quality Based Effluent Limits for the same pollutant for the same reasons, regardless of whether or not they are discharging to the same waterbody. 

The Montana variance was approved for up to 20 years and is based solely on substantial and widespread economic and social impact:

The EPA reviewed Montana’s basis for determining that it is reasonable to grant multiple public and multiple private dischargers throughout the state with general variances of up to 20 years based on demonstration that it is infeasible to meet water quality-based effluent limits based on NNC (and by extension infeasible to attain the designated use for that limited time) “end-of-pipe” because meeting such limits would cause substantial and widespread economic and social impacts (see 40 CFR §131.10(g)(6)) on a statewide basis.

See variance p. 14.

Interim limits apply and evolve during the life of the variance.  Montana is required to triennially review the economic justification, as well as the costs and effluent concentrations associated with various available treatment technologies.  Findings from this review will determine the next set of interim limits. If modification of interim limits is warranted based on the findings, the State will initiate formal rulemaking and provide for public notice and comment.

Waterkeeper’s Challenge

The Upper Missouri Waterkeeper’s key arguments include:

  • The variance “was based almost entirely on a ‘cost’ analysis.”
  • “Montana did not analyze data for each specific nutrient pollutant discharger, for classes of dischargers, or the highest attainable condition for each receiving water in deciding to adopt the weaker replacement standard.  Additionally, Montana did not consider whether the replacement standard would protect receiving waterways’ designated use(s).”
  • As a result of EPA’s approval of the variance, “the science-based numeric nutrient criteria are not the actual applicable water quality standards in Montana. Rather, the actual nutrient standard in Montana is the replacement standard, a standard that is not based on science, but is based solely on the cost of pollutant treatment.”
  • EPA has “authorized the state’s use of weaker, less-stringent effluent limits that are not protective of existing uses, and do not reflect the water quality needed to protect attainable uses as shown by best available science.”

Each of these arguments is flawed as summarized in the following section.

NACWA’s Position

Variances are authorized by the Clean Water Act and are essential and appropriate implementation tools.  In addition, EPA embraces and encourages the use of general variances.  Montana’s general variance approval needs to be upheld so that it can serve as a model for other states to follow where particular categories of dischargers needing additional time to come into compliance with water quality standards are identified, should states adopt water quality standards that are recognized as unattainable in the near term by a group of dischargers.

Analyzing data for each specific discharger is not required for a group variance.  MTDEQ appropriately analyzed data for classes of dischargers.  In adopting the variance, the State evaluated the variance for both public wastewater discharges and private, non-POTW permittees; the State provided different analyses and conditions for the separate groups under the variance.

Waterkeeper’s allegation on protection of designated uses fundamentally misconstrues the nature of variances.  The whole point of a variance is that the use may not be attainable in the near-term.


If the federal district court strikes down EPA’s approval of the variance, the precedent will have immediate impacts in Montana and could severely limit or eliminate the availability of water quality variances nationwide.  A negative decision would have a chilling effect on other states that are contemplating general variances which may be needed by utilities.  In addition, it would have impacts beyond nutrients, including in states that have already adopted extremely low water quality standards for toxics.

EPA currently embraces a cooperative federalism approach to NNC; states take the lead in promulgating the criteria but also have the option to use variances to provide time for implementation.  This approach fails if variances in most or every state are challenged by environmental groups and struck down by the courts.  Thus, national implications are not just on the viability of variances for nutrients, but the viability of EPA’s entire nutrient approach with the states.  If the use of variances is not available to EPA, they may be left with no option but to promulgate federal NNC.

Next Steps

NACWA’s intervention in the case secures its position as a party to the litigation to ensure that the variance approval is defended. MTDEQ, the Montana League of Cities and Towns, and several industry groups have also intervened in the litigation.  NACWA is working with utility leaders in Montana to ensure their interests, and those of other clean water utilities that may need to rely on variances in the future, are protected in the case going forward.


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