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American Wildlands v. Browner

Citation: 30 ELR 20536
No. No. CIV.A. 98-K-1621, 94 F. Supp. 2d 1150/(D. Colo., 05/04/2000)

The court upholds the U.S. Environmental Protection Agency's (EPA's) approval of several Montana water quality standards. The court first holds that the environmental organizations challenging EPA's approval have standing. The organizations' members established that they have suffered an injury-in-fact to their aesthetic, conservation, and economic interests, and if successful in the action at hand, the members will have these injuries addressed. The court next holds that EPA's approval of Montana's water quality standards exempting nonpoint source pollution from the state's antidegradation rule is not arbitrary or capricious. Nothing in the Clean Water Act (CWA) demands that a state adopt a regulatory system for nonpoint sources. Thus, it cannot be said that EPA erred in exempting nonpoint source pollution from review under its antidegradation policy. The court also upholds EPA's approval of Montana's water quality standards exempting mixing zones from compliance with narrative water quality criteria and the state's antidegradation policy. Narrative and numeric criteria are recommended, rather than required, methods of measurement of water quality in mixing zones. It is acceptable to exempt mixing zones from numeric and narrative criteria if adequate restrictions provide for the same environmental outcome. Here, Montana has provided such restrictions under its state pollutant discharge elimination system. In addition, because the mixing zone guidance is more specific than the antidegradation policy, it prevails in authority.

The court additionally holds that EPA did not violate its duty to promptly promulgate replacements for Montana's disapproved standards. Montana has amended all but two of the disapproved standards, and Montana informed EPA that it would amend the remaining two standards by the end of February 2000. EPA's delay, therefore, is reasonable. The court also holds that EPA's failure to review and approve or disapprove Montana's definition of "interested person" is not arbitrary or capricious. The CWA and its regulations specifically state what policies must be reviewed by EPA. While the CWA encourages public participation, the CWA's list of general policies makes no allusion to procedural policies. Therefore, because the CWA has not hinted that procedural policies should be reviewed, and interested parties retain a voice in the administrative process, EPA's decision is within its scope of authority. Last, the court holds that it lacks jurisdiction to rule on whether EPA's incorporation and use of Montana's new and revised water quality standards without EPA's prior approval and EPA's continued incorporation and use of disapproved water quality standards is arbitrary or capricious. The organizations' sole example of EPA's reliance on disapproved standards was a total maximum daily load (TMDL). Approving a TMDL involves issuing a permit, and only the Tenth Circuit Court of Appeals may review the decision to issue or deny a permit.

Counsel for Plaintiffs
Robert B. Wiygul
Earth Justice Legal Defense Fund
1631 Glenarm Pl., Ste. 300, Denver CO 80202
(303) 623-9466

Counsel for Defendants
David A. Carson
Environment and Natural Resources Division
U.S. Department of Justice
999 18th St., Ste. 945-N, Denver CO 80202
(303) 294-1900/312-7353