Waterkeeper Litigation Update 2018

Citizens are one of a nation’s greatest resources for enforcing environmental laws and regulations. We know the country’s land, natural attributes, and values more intimately than government ever will.


A bird-watcher walking in the woods sees chemical waste flowing through a stream, traces the source to a neighboring factory, and alerts government agencies to the factory’s violation of its emissions discharge permit. A local citizen group in a small town near a coal mine suggests to a state mining agency practical ways, based on the citizens’ own observations of the mine in operation, of making environmental standards for mines easier to administer and enforce. A city resident notices that municipal buses are emitting noxious fumes, sues the bus company, and wins a court order requiring the company to place pollution control devices in the bus exhaust systems. These are just a few examples of the many and varied influences citizens can have on the process of environmental enforcement.

Indeed, Congress recognized over 40 years ago that because protecting environmental quality is important to the public at large, the public should be authorized to help enforce water pollution laws. Such citizen participation not only builds public confidence in the government’s efforts to improve water quality, but also ensures enforcement of the critical water pollution controls. Citizen lawsuits aid in enforcement by motivating the agencies charged with enforcement responsibility to take action against violators. The possibility that a citizen suit might be brought to enforce pollution standards, which the agency itself should enforce, is also likely to prod the agency into taking action.

Since our humble beginnings in 2013 Waterkeeper has taken legal action several times to enforce environmental laws where the government has been unable – or unwilling – to do so, and also in times where our government has unlawfully attempted to weaken or undermine pollution control laws. Below is an executive summary of the three (3x) lawsuits Upper Missouri Waterkeeper is currently using to protect clean water and healthy rivers in Montana:

  • Defending Science-Based Protections for Montana Waterways

Over two years ago the Obama Administration finalized a regulation, commonly known as the “Clean Water Rule,” which set forth new determinations and conclusions concerning the scope (how far the law extends) of federal protections over waterway pollution. While many conservation organizations jumped on the bandwagon stating the rule brought clarity to longstanding ambiguity, Upper Missouri Waterkeeper and other partner organizations were gravely concerned because the rule’s new definitions, while more clear, actually limited protections for certain types of headwaters and hydrologically-connected groundwater, and created new, arbitrary distinctions eliminating federal protection for other waters. We and partner organizations filed a lawsuit challenging this new rule which, after years of procedural delay over proper court venue, is now proceeding in the 9th Circuit.

Similarly, the Trump administration recently attempted to circumvent legally required notice and comment duties and implement its own, new Clean Water Rule. We and partner organization submitted technical comments opposing this move and explaining the legal obligations the new administration must undertake before changing regulations and, specifically, what should be done to provide clarity as regards the Clean Water Rule.

We are on-guard watch-dogging any further attempts of the Trump administration to undermine the scope or interpretations of federal water pollution controls and likewise pursuing a remand and revision of the bad Obama-era rule definition, and will continue to use the courts as necessary to ensure protections for Montana headwaters and streams are kept in-place.

  • Challenging Illegal Polluter Exemptions for Nutrient Pollution

In 2014, more than twelve years after first directed by EPA to do so, Montana adopted the “Numeric Nutrient Rule Package,” which consists of Water Quality Standards geared toward addressing pollution problems caused by excessive, unhealthy amounts of nitrogen and phosphorus in our rivers and streams. However, at the same time Montana adopted a a so-called variance rule, which is in effect a replacement of the science-based water quality standards for these pollutants.

The nutrient variance rule supplants the numeric, scientific limits with weaker, less-protective limits.  Contrary to the requirements of the Clean Water Act, the variance or ‘replacement’ standard is based solely on non-water quality considerations, not on what is needed to protect and maintain healthy rivers and fisheries. The state of Montana and EPA have contorted and grossly expanded a very limited regulatory mechanism, and in the process latched onto a “cost” concept as an off-ramp from applying the science-based numeric nutrient criteria necessary to protect Montana’s waterways.

For these reasons Waterkeeper filed a lawsuit in federal court challenging EPA’s approval of Montana’s numeric nutrient variance rule in mid-2016. In 2017, the state of Montana attempted to moot our lawsuit when it changed certain pieces of its 2015 rule; we’ve since analyzed the changes and determined the key unlawful provisions – exemptions from science-based pollution controls on the basis of cost – still remain. Therefore we’ve amended our lawsuit to accurately reflect the remaining legal issues and are still pursuing this lawsuit in federal court; we hope to have a judge rule on the case during 2018 and, in so doing, stop Montana’s use of ‘variances’ that exempt polluters from doing their part to reduce river pollution.

  • Challenging Weak State Rules for Stormwater Pollution from Urban Development

Upper Missouri Waterkeeper filed a lawsuit December 2016 with the Montana 18th District Court challenging the Montana Dept. of Environmental Quality’s (DEQ) new statewide, General Permit for municipal separate storm sewer systems (the MS4 General Permit). The focus of the lawsuit is on DEQ’s failure to properly draft a pollution permit that complies with state and federal law, not any action by a permittee such as a municipality.

MS4 permits require urban area jurisdictions to address the negative environmental impacts of development on local creeks; jurisdictions are required to proactively require Best Management Practices that limit untreated stormwater discharging to local waterways and wetlands, and likewise to clean-up already polluted local urban creeks degraded by past development. Many of the thirteen major urban areas covered by the MS4 General Permit have fallen well short of DEQ goals established in previous stormwater permits. Often, the lack of progress was due to vague permit requirements and insufficient funding by the jurisdictions.

We are awaiting oral argument in March, 2018 and hope to have the court take action later this summer.

As Montana’s population continues to grow and impacts to water and landscapes intensify, we are the leading river protection organization working to ensure Montana’s local and state decisionmakers and agencies conduct the requisite planning, and take necessary regulatory steps, to protect and improve water resources.

Healthy, clean waterways go hand-in-hand with strong communities. Therefore we focus on stopping unlawful pollution at its source, on securing new regulations and strong protections that will provide critical defense and progress, and on long-term solutions to pollution issues and trends threatening Southwest and West Central Montana.