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Upper Missouri Waterkeeper v. Montana Department of Environmental Quality

ELR Citation: 49 ELR 20060
Nos. DA 18-0462, (Mont., 04/09/2019)

A state high court affirmed a lower court's summary judgment for the Montana Department of Environmental Quality in a challenge to the Department's issuance of a NPDES general permit for discharges from municipal separate storm sewer systems (MS4s). An environmental group challenged the permit, arguing that the permit's construction and pre-construction stormwater pollution control standards were both legally inadequate and unsupported by substantial evidence. But the court found the standards were consistent with EPA regulations at the time the permit was issued because they contained numerous best management practices for each minimum control measure to allow an MS4 to meet its water quality goals. The group also argued that the Department abused its discretion by not including enforceable and measurable pollutant reduction requirements tied to applicable TMDL waste load allocations. But the court again found that the Department's interpretation of its rule regarding TMDLs was not unlawful, arbitrary, capricious, or unsupported by substantial evidence, because EPA first approved the TMDLs in a separate process and then reviewed and concurred in the issuance of the permit that contained those TMDLs. It therefore affirmed the Department's issuance of the general permit.