NACWA Counters Attacks on Municipal Variances in Montana Nutrient Litigation

(October 7, 2020) – NACWA this week filed its second brief to the U.S. Court of Appeals for the Ninth Circuit in litigation over the legality of a Clean Water Act (CWA) water quality standards variance for municipal discharges issued by the State of Montana and approved by the U.S. Environmental Protection Agency (EPA). The Association filed its opening brief in June. 

NACWA’s latest brief sets forth additional reasons why the variance, which provides temporary relief to public clean water agencies from stringent numeric nutrient criteria, is lawful under the CWA. Specifically, in response to claims made by environmental plaintiffs, NACWA’s brief outlines how discharger-specific variances adequately protect waterbodies’ designated uses, serve the purposes of the CWA, and are a critical tool for the clean water community. 

NACWA’s brief also addresses plaintiffs’ arguments that the case is moot, as it is important for NACWA’s members that the Ninth Circuit address the lower court’s holding that water quality standards variances must ensure compliance with the underlying standards by the end of their term. Were that decision to stand, it could cause significant harm not only to NACWA’s Montana members, but also other utilities seeking to utilize variances to address increasingly stringent numeric criteria across the country. 

The U.S. Department of Justice, representing EPA, and the State of Montana have likewise filed additional briefs in support of the variance. NACWA anticipates that the Ninth Circuit will schedule oral arguments for the case in early 2021.

For questions concerning the litigation, please contact NACWA’s Chief Legal Counsel, Amanda Aspatore.