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Ninth Circuit OKs weakened Clean Water Act regs when cost is a factor

According to the panel, Congress' intentions for Clean Water Act enforcement turns on the words "wherever attainable."

PORTLAND, Ore. (CN) — The Ninth Circuit refused to disturb a decision by the EPA to let Montana skip out on pollution regulations for its rivers, since the state said reducing runoff from agriculture and sewage treatment plants would cost too much.

Upper Missouri Waterkeeper claimed such an exception is illegal because the Clean Water Act requires Montana to regulate pollution in its rivers regardless of the cost. But the Ninth Circuit ruled on Wednesday that Congress didn’t spell out whether that sort of wiggle room was allowed, instead simply saying that water quality standards supporting aquatic life and recreational use are required “wherever attainable.”

“It fell to the EPA to flesh out the meaning of that term,” U.S. Circuit Judge Paul Watford, a Barack Obama appointee, wrote for the three-judge panel.

Under the Clean Water Act, states must submit their plans to comply with water quality standards to the EPA for approval. Montana did so in 2014 for regulation of nitrogen and phosphorus in its “wadeable streams.” The EPA approved the state’s plan the following year. Then in 2017, Montana applied for a variance to allow agricultural and sewage treatment facilities to pollute more than the state’s water quality plan would normally allow — a common process under the Clean Water Act.

Montana claimed that it would cost too much to require 36 wastewater treatment facilities to implement the reverse osmosis technology necessary to comply with water quality standards and requested a variance that would allow increased pollution for the next 17 years. The EPA agreed, finding that holding the facilities to the water treatment plan would cost the average Montana household more than 2% of its median income.

Upper Missouri Waterkeeper sued, claiming that Montana’s variance is illegal under the Administrative Procedure Act and arguing the Clean Water Act doesn’t allow the EPA to loosen environmental protections based on their cost.

In July 2019, a federal judge agreed variances the EPA had approved allowing Montana to delay protection of its rivers didn’t guarantee compliance with the law, which requires the state to maintain water standards conducive to “designated uses” of the river, such as public health, fishing, swimming, boating, agriculture and industry. The court ordered Montana and the EPA to rewrite their plan based on a third-party expert’s assessment of when the legally required water quality standards could reasonably be attained.

Montana submitted a revised plan, but the EPA said the new plan wasn’t consistent with the court order and instead approved provisions Upper Missouri Waterkeeper deemed a “poison pill,” which substituted only “generic narrative standards for all waters and all pollutants,” the group said.

In October 2020, U.S. District Judge Brian Morris ordered the EPA to approve specific timelines that would bring delays approved in the variances in line with the Clean Water Act. 

The EPA appealed, and on Wednesday the Ninth Circuit panel sided with the agency.

Watford found that although Congress did not explicitly spell out whether cost considerations were a permissible reason to weaken environmental protections under the Clean Water Act, the law does specify that such protections are intended to “protect the public health or welfare.” (emphasis in ruling). Watford said that phrase suggests the EPA’s interpretation of the law is correct.

“It is true, as Waterkeeper argues, that [the Clean Water Act] includes a list of uses and values that states must “tak[e] into consideration” when establishing water quality standards, without expressly mentioning the costs of compliance,” Watford wrote. “But the inference that Waterkeeper asks us to draw — that Congress’s silence as to costs reflects an intention to forbid their consideration — is not supported by the text of the provision or the broader statutory context.”

Additionally, the Clean Water Act says water quality standards that protect aquatic life and recreational use are required “wherever attainable.” Watford noted the law is silent as to which factors may be considered when determining attainability. And in the absence of such specifics, the EPA reasonably decided that cost was an important factor, Watford wrote.

“It fell to the EPA to flesh out the meaning of that term,” Watford wrote.

“The agency could perhaps have interpreted the term to focus solely on whether achieving water quality of a particular level is technologically feasible, even if the costs involved would prove financially ruinous to the communities benefitting from the improvements,” Watford wrote. “But it seems far more plausible that Congress used the term in the sense reflected in the EPA’s regulations — as including an assessment of whether achieving the necessary water quality is economically feasible, given the costs that would be imposed on the affected communities.” (emphasis in ruling)

The panel sent the case back to the district court with instructions to grant the EPA’s request that the panel approve the 17-year time frame for Montana’s variance.

U.S. Circuit Judge Richard Paez, appointed by Bill Clinton, and U.S. Circuit Judge Danny Boggs, an Obama appointee sitting by designation from the Sixth Circuit, joined the opinion.

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