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 law.
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 given.
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 contaminated.
``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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