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United States District Court District of Montana Great Falls Division Case 4:16-cv-00052-BMM Document 109 Filed 11/01/17 Page 1 of 55 JEFFREY H. WOOD Acting Assistant Attorney General Environment and Natural Resources Division DANIEL PINKSTON Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice 999 18th Street, South Terrace, Suite 370 Denver, CO 80202 (303) 844‐1804 [email protected] KURT G. ALME United States Attorney District of Montana 901 Front Street, Suite 1100 Helena, MT 59626 (406) 457‐5120 [email protected] Attorneys for Defendants UNITED STATES DISTRICT COURT DISTRICT OF MONTANA GREAT FALLS DIVISION UPPER MISSOURI WATERKEEPER, ) Case No. 4:16‐cv‐00052‐BMM ) Plaintiff, ) ) DEFENDANTS’ NOTICE OF ACTION v. ) REGARDING MONTANA REVISED ) CIRCULAR DEQ‐12B UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY and SCOTT ) PRUITT, Administrator, United ) States Environmental Protection ) Agency, ) ) Defendants. ) _________________________________________ ) 1 Case 4:16-cv-00052-BMM Document 109 Filed 11/01/17 Page 2 of 55 Defendants United States Environmental Protection Agency and Administrator Scott Pruitt (collectively, “EPA”) hereby give notice that on October 31, 2017, pursuant to 33 U.S.C. § 1313(c), EPA took action regarding Revised Circular DEQ‐12B by issuing a decision via letter addressed to Mr. Tom Livers, Director, Montana Department of Environmental Quality. A copy of that letter, including its attachments, is appended to this Notice as Exhibit A. Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General Environment and Natural Resources Division Dated: November 1, 2017 By: Daniel Pinkston DANIEL PINKSTON Environmental Defense Section Environment and Natural Resources Division U.S. Department of Justice 999 18th Street, South Terrace, Suite 370 Denver, CO 80202 (303) 844‐1804 [email protected] KURT G. ALME United States Attorney District of Montana 901 Front Street, Suite 1100 Helena, MT 59626 (406) 457‐5120 [email protected] 2 Case 4:16-cv-00052-BMM Document 109 Filed 11/01/17 Page 3 of 55 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Defendants’ Notice of Action Regarding Montana Revised Circular DEQ‐12B by Notice of Electronic Filing using the Court’s CM/ECF system, which will send notice of such filing via email to all counsel of record. Said filing was made on or before the date set forth below. Dated: Nov. 1, 2017 /s/ Daniel Pinkston Environmental Defense Section United States Department of Justice 3 Case 4:16-cv-00052-BMM Document 109 Filed 11/01/17 Page 4 of 55 Exhibit A Case 4:16-cv-00052-BMM Document 109 Filed 11/01/17 Page 5 of 55 JN~tE03Tq~s UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 'z" A ~ REGION 8 ~ ~'W 1595 Wynkoop Street ~~~tiTq~ PgOtE~~2 Denver, CO 80202-1129 Phone 800-227-8917 www,epa. gov/region08 Ref: 8WP-C p~j 3 1X17 Tom Livers, Director Montana Department of Environmental Quality P.O. Box 200901 Helena, Montana 59620-0901 Re: EPA Action on Montana's Variance Rules Dear Mr. Livers: The U.S. Environmental Protection Agency Region 8(EPA) has completed its review of Montana's new water quality standard(WQS) variance rules for nutrients and is approving the variances as described in the Enclosure.l The Montana Department of Environmental Quality (Montana or MDEQ)adopted these revisions on June 12, 2017, and submitted the new nutrient variance rules to the EPA for review pursuant to 40 CFR § 131.20(c). The submission included:(1) a copy of the adopted nutrient variance rules and supporting materials;(2) notice of final adoption of the nutrient variance rules with the state's response to comments; and (3) a letter certifying that the nutrient variance rules were adopted in accordance with state law. Receipt of this submission on June 27, 2017, initiated the EPA's review pursuant to Section 303(c) of the Clean Water Act(CWA or the Act) and the federal water quality standards implementing regulation (40 CFR Part 131). Montana's new nutrient variance rules include: • A general variance for dischargers for up to 17 years for mechanical plants and up to 10 years for lagoons(ARM 17.30.660(1-2) and (8), Department Circular DEQ-12B Sections 1.0 and 2.0); and • An individual variance authorizing provision applicable for future individual dischargers discharging to waters with numeric nutrient criteria(ARM 17.30.660(1, 4 and 8)and Department Circular DEQ-12B Section 3.0). Today, the EPA is acting on the general variance for dischargers discharging to waters with numeric nutrient criteria(NNC). The EPA's action is supported by the record and consistent with CWA requirements and the EPA's implementing regulation. The EPA is taking no action on the individual variance authorizing provision at this time. The EPA looks forward to continuing to work with Montana to protect and improve surface water quality within the state. On February 26, 2015, the EPA approved Montana's numeric nutrient criteria, general variance and individual variance authorizing provision. Montana's general variance interim effluent condition limits expired on July 1, 2017. Today's action applies to Montana's new general variance, revised to comply with 40 CFR § 131.14. Case 4:16-cv-00052-BMM Document 109 Filed 11/01/17 Page 6 of 55 Clean Water Act Review Requirements The CWA Section 303(c)(2) requires states and authorized Indian tribes2 to submit new or revised water quality standards(WQS) to the EPA for review. The EPA is required to review and approve or disapprove, the submitted WQS. Pursuant to CWA Section 303(c)(3), if the EPA determines that any WQS is not consistent with the applicable requirements of the Act, the Agency shall, not later than the ninetieth day after the date of submission, notify the state or authorized tribe and specify the changes needed to meet the requirements. If such changes are not adopted by the state or authorized tribe within ninety days after the date of notification, the EPA is to promptly propose and promulgate such standard pursuant to CWA Section 303(c)(4)(A). The Region's goal has been, and will continue to be, to work closely with states and authorized tribes throughout the water quality standards revision process to help ensure that submitted water quality standards adopted by states and authorized tribes are consistent with CWA requirements. Pursuant to 40 CFR § 131.21(c), new or revised state or authorized tribal standards submitted to the EPA after May 30, 2000, are not applicable for CWA purposes, including NPDES permitting, until approved by the EPA. Today's Action Today the EPA is approving, as consistent with the requirements of the CWA and the EPA's implementing regulation a general variance for nutrients for 36 dischargers. The EPA is taking no action at this time on the individual variance authorizing provision. The Enclosure contains a detailed rationale for today's action. Endangered Species Act Requirements The EPA's approval of Montana's nutrient variance rules submitted on June 27, 2017 is subject to the consultation requirement of Section 7(a)(2) of the Endangered Species Act(ESA). Under Section 7(a)(2) ofthe ESA, 16 U.S.C. § 1536, the EPA has the obligation to ensure that its approval of these modifications to Montana's WQS will not jeopardize the continued existence of threatened and endangered species and their critical habitat in Montana. The EPA initiated consultation with the US Fish and Wildlife Service(USFWS) regarding the effects of this action regarding Montana's general nutrient variance in August 2017 and sent a Biological Evaluation to the USFWS on October 30, 2017. The EPA's approval of Montana's new 2017 general nutrient variance pending completion of consultation under ESA Section 7(a)(2) is fully consistent with Section 7(d) of the ESA because it does not foreclose either the formulation by Montana or the implementation by the EPA of any alternatives that might be determined in the consultation to be needed to comply with ESA Section 7(a)(2). Under CWA Section 303(c)(4)(B), the EPA has authority to take additional action regarding the revision of water quality standards for Montana if the consultation with the USFWS identifies deficiencies in the revised water quality standards requiring remedial action by the EPA, after the EPA has approved the revisions. z CWA Section 518(e) specifically authorizes the EPA to treat eligible Indian tribes in the same manner as states for purposes of CWA Section 303. See also 40 CFR § 13].8. Case 4:16-cv-00052-BMM Document 109 Filed 11/01/17 Page 7 of 55 Indian Country The WQS approvals in today's letter apply only to waterbodies in the State of Montana, and do not apply to waters that are within Indian country, as defined in 18 U.S.C. Section 1151. "Indian country" includes any land held in trust by the United States for an Indian tribe and any other areas defined as "Indian country" within the meaning of 18 U.S.C. Section 1151. Today's letter is not intended as an action to approve or disapprove water quality standards applying to waters within Indian country. The EPA, or authorized Indian tribes, as appropriate, will retain responsibilities for water quality standards for waters within Indian country. Conclusion The EPA Region 8 thanks MDEQ for their efforts to revise the nutrient variance rules and to ensure these variances comply with the EPA's regulation at 40 CFR Part 131, specifically the variance requirements at 40 CFR § 131.14. The EPA looks forward to working with MDEQ to make additional improvements to the State's water quality standards in the future and to determine any additional facilities that may need WQS variances.
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