Upper Missouri Waterkeeper v. U.S. Envtl. Prot. Agency & Scott Pruitt

• Decision Date: 25 March 2019
• Docket Number: CV-16-52-GF-BMM
• Citation: 377 F.Supp.3d 1156
• Parties: UPPER MISSOURI WATERKEEPER, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Scott Pruitt, 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.
• Court: U.S. District Court — District of Montana

377 F.Supp.3d 1156

UPPER MISSOURI WATERKEEPER, Plaintiff,

v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Scott Pruitt, Administrator, United States Environmental Protection Agency, Defendants,andState 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.

CV-16-52-GF-BMM

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

Signed March 25, 2019

Katherine K. O'Brien, Jenny K. Harbine, Earthjustice Legal Defense Fund - BOZEMAN, Bozeman, MT, Janette K. Brimmer, Pro Hac Vice, Stephanie K. Tsosie, Pro Hac Vice, Earthjustice, Seattle, WA, Albert F. Ettinger, Pro Hac Vice, Chicago, IL, for Plaintiff.

Alan D. Greenberg, Daniel W. Pinkston, U.S. Department of Justice Environmental Defense Section, Denver, CO, for Defendants.

Jeffery J. Oven, Mark L. Stermitz, Crowley Fleck PLLP - Billings, Billings, MT, M. Christy S. McCann, Catherine A. Laughner, Browning Kaleczyc Berry & Hoven, P.C. - Bozeman, Bozeman, MT, Chad E. Adams, Browning Kaleczyc Berry & Hoven, Murry Warhank, Jackson, Murdo & Grant, P.C., Matthew Dolphay, Crowley Fleck PLLP - Helena, Intervenor Defendant Kurt R. Moser, Montana Department of Environmental Quality, Sarah A. Bond, Office of the Montana Attorney General, Helena, MT, Fredric P. Andes Barnes & Thornburg, LLP - Chicago Chicago, IL Paul M. Drucker, Barnes & Thornburg, LLP - Indianapolis, Indianapolis, IN, for Defendants and Intervenors.

ORDER

Brian Morris, United States District Court JudgePlaintiff 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.

Defendants 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, Montana.

BACKGROUND

DEQ 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.

Montana's 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 WQS.

DEQ 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. Id.

DEQ 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 2015.

Waterkeeper 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 triennial review.

EPA 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.

The 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.)

The 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.

Waterkeeper's 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.

STATUTORY AND REGULATORY BACKGROUND

I. WATER QUALITY STANDARDS

The CWA 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, 112 S.Ct. 1046, 117 L.Ed.2d 239 (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).

The CWA 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).

The CWA 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).

The CWA also directs EPA to...