U.S. Water News Online
HELENA, Mont. -- A federal court has upheld the U.S.
Environmental Protection Agency's approval of two Montana water
quality laws that environmental groups had claimed violate federal
The unanimous decision by a three-judge panel of the 10th U.S.
Circuit Court of Appeals supported a ruling by a federal judge in
Denver in a lawsuit that began more than three years ago.
The court said the EPA lacks authority over water pollution that
does not come from a single identifiable source, so the agency's
approval of a Montana law exempting such pollution from a review to
determine the level of water contamination is not wrong.
The judges also found no fault with EPA's approval of a law
permitting mixing zones in which pollution is diluted as it reaches
the water. The court said federal regulations specifically allow for
such zones and Montana law includes provisions to ensure that use of
such mixing areas does not damage an entire body of water.
A spokesman for the lead organization filing the suit said the
legal action was a success, despite the recent ruling.
Rob Ament, executive director of American Wildlands in Bozeman,
said the suit succeeded in forcing the EPA to review and act on a
number of changes in Montana water quality laws and that resulted in
the agency rejecting some of the laws.
``When you look at the lawsuit in the three years it's been in the
courts, we've won a lot,'' he said.
Bill Wuerthele, EPA regional water quality standards coordinator
in Denver, said the ruling resolved important questions about the
agency's powers under the Clean Water Act.
``This case is about our authority and what's required versus what
might be desirable,'' he said. ``We consider the decision appropriate
and it clarifies distinction between what we can request and what the
environmental groups might see as desirable.''
The suit was filed in March 1998 by American Wildlands, Pacific
Rivers Council, Montana Environmental Information Center and Northern
Plains Resource Council.
The group charged the EPA was doing a slipshod job of making sure
the state was protecting Montana's rivers and streams. They said the
federal Clean Water Act required the EPA to review state water
quality when changes are made in water quality laws, but that had not
happened since 1989.
The suit was put on hold to give the EPA time to do the review by
the end of that year. The agency disapproved several laws and the
complaint was changed to focus on those instances where approval was
The suit said the EPA was wrong to allow the state to exempt from
review mixing zones receiving water from a specific source, such as a
pipe leading to a river, and water pollution that does not come from
a single source.
Mixing zones are widely used in almost every state and are
permissible so long as the higher level of pollution is confined to
that portion of the water and does not lead to degradation of the
entire water body, the appeals court said.
As for non-specific pollution sources, the court said the EPA
correctly concluded it lacks jurisdiction to require a state to
review such activities as a threat to water quality.
Ament said the ruling dashed environmentalists hope of forcing
state review of pollution sources before waters are badly
``We were hoping for preventive measures to be put in place to
protect Montana waters,'' Ament said. ``It makes good common sense.
However, there's not room for it under the Clean Water Act legally.''
Claudia Massman, a lawyer for the Montana Department of
Environmental Quality, called the decision ``a great victory for the
state'' because it upholds a pair of important water quality laws.
If the EPA had lost and mixing zones were prohibited, specific
sources of pollution would be required to treat their discharge
before it reaches a waterway, she said. For other pollution sources,
the state would have to review every activity to make sure it would
not degrade water quality, Massman added.
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