Upper Missouri Waterkeeper v, United States Environmental Protection Agency, No. 19-35898 (9th Cir. 2021)Annotate this Case
The Clean Water Act requires states to adopt water quality standards regulating pollutants in their navigable waters, including the designated uses for the water body, such as supporting aquatic life or recreational use and the “water quality criteria” necessary to protect those uses, 33 U.S.C. 1313(c)(2)(A). The EPA approved Montana’s water quality standards in 2015. In 2017, Montana obtained EPA’s approval of a variance in the water quality standard, which covered 36 municipal wastewater treatment facilities for up to 17 years and allowed those facilities to discharge more nitrogen and phosphorus into wadeable streams than would be permitted under the approved base water standards.
The Ninth Circuit rejected a challenge. The Act did not preclude the EPA from taking compliance costs into account when approving the variance requests. Congress has not directly spoken to that precise question and the EPA reasonably construed section 1313(c)(2)(A) as permitting it to consider compliance costs. The EPA’s variance regulation neither requires compliance with the highest attainable condition at the outset of the variance term nor requires compliance with base water quality standards by the end of that term. The regulations include numerous features to ensure that dischargers and waterbodies subject to variances continued to improve water quality, consistent with the goals of the Act, including supporting aquatic life and recreational uses whenever attainable.