Upper Missouri Waterkeeper v. United States Environmental Protection Agency et al

Filing 224

CONSOLIDATED ORDER; 1. Waterkeeper I (Cause No. CV-16-52) and Waterkeeper II (Cause No. CV-20-27) are CONSOLIDATED. 2. This Order incorporates by reference the partial vacatur and stay imposed by the 2019 Remedies Order, Waterkeeper I, Doc. 184 . T he partial vacatur shall be STAYED until EPA approves replacement general variance timelines in accordance with this Courts 2019 Summary Judgment Order, Waterkeeper I, Doc. 177 . 3. The Court DEFERS ruling on the Motions for Summary Judgment (Docs. 12 , 35 , 39 , 43 , and 63 ) in Waterkeeper II until it completes additional record review. Signed by Judge Brian Morris on 10/30/2020. (TLO)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
UPPER MISSOURI WATERKEEPER,
Plaintiff,

CV-16-52-GF-BMM
CV-20-27-GF-BMM

vs.
CONSOLIDATED ORDER
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY and ANDREW
WHEELER, Administrator, United States
Environmental Protection Agency
Defendants,
STATE OF MONTANA DEPARTMENT
OF ENVIRONMENTAL QUALITY,
TREASURE STATE RESOURCES
ASSOCIATION OF MONTANA, and
MONTANA LEAGUE OF CITIES AND
TOWNS,

Defendants and Intervenors.

INTRODUCTION
Plaintiff Upper Missouri Waterkeeper (“Waterkeeper”) filed this action to
challenge the Environmental Protection Agency’s (“EPA”) February 24, 2020
approval of A.R.M. §§ 17.30.619(2) and 17.30.715(4) (collectively “Poison Pill”) as
arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C.

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§ 706(2)(A), and unlawful under the Clean Water Act (“CWA”) mandates as set
forth in 33 U.S.C. § 1313. Upper Missouri Waterkeeper v. U.S. Envtl. Protection
Agency, Cause No. CV-20-27, Doc. 1 (D. Mont. 2020) (“Waterkeeper II”).
Waterkeeper filed a Motion for Summary Judgment on March 31, 2020.
Waterkeeper II, Doc. 12.
Defendants EPA and Andrew Wheeler, EPA Administrator, and DefendantIntervenors State of Montana Department of Environmental Quality (“DEQ”),
Treasure State Resources Association of Montana, and Montana League of Cities
and Towns (collectively, “Defendants”), have filed Cross-Motions for Summary
Judgment to uphold EPA’s approval of the Poison Pill. (Docs. 35, 39, 43, and 63).
The Court held a hearing on the summary judgment motions on September 24, 2020.
The case arises from a substantially related earlier—and ongoing—legal
controversy. Upper Missouri Waterkeeper v. U.S. Envtl. Protection Agency, et al.,
377 F. Supp. 3d 1156, Cause No. CV-16-52 (D. Mont. 2019) (“Waterkeeper I”).
STATUTORY AND REGULATORY BACKGROUND
The Clean Water Act and WQS Criteria Development
“The Clean Water Act anticipates a partnership between the States and the
Federal Government, animated by a shared objective: ‘to restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters.’” Arkansas v.
Oklahoma, 503 U.S. 91, 101 (1992) (quoting 33 U.S.C. § 1251(a)). A core element
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of the CWA involves a two-step approach to improving water quality that “delegates
certain responsibilities to EPA and others to the States in furtherance of the [CWA]’s
stated purpose of promoting cooperation between federal and state governments.”
Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 214 (D.D.C. 2011)
(citing 33 U.S.C. § 1251(b)).
In the first step, Congress provided states the opportunity to develop water
quality standards (“WQS”) “to protect public health or welfare, enhance the quality
of water and serve” the CWA’s stated goal to “restore and maintain” the Nation’s
waters. 40 C.F.R. § 131.2; see also 33 U.S.C. §§ 1251, 1313. A state that seeks to
promulgate WQS must follow these steps: (1) identify designated uses of its waters,
40 C.F.R. § 131.10; (2) develop WQS criteria necessary to protect those designated
uses, 40 C.F.R. § 131.11(a)(1); and (3) adopt an antidegradation review policy that
allows the state to assess activities that may lower the water quality of a water body,
40 C.F.R. § 131.12. See Pennaco Energy, Inc. v. U.S. Envtl. Protection Agency, 692
F. Supp. 2d 1297, 1300-01 (D. Wyo. 2009).
A state must establish WQS criteria on “sound scientific rationale and must
[include] sufficient parameters or constituents to protect the designated use.” 40
C.F.R. § 131.11(a)(1). A state may establish WQS criteria in one of two forms:
numeric or narrative criteria. 40 C.F.R. § 131.11(b). Numeric criteria represent
quantifiable concentration levels of nutrient pollutants that can be present in a
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waterbody while still protecting the designated uses of that waterbody. EPA,
Nutrient Criteria Technical Guidance Manual: Rivers and Streams (July 2000),
Waterkeeper II, Doc. 19 at 26 (“EPA Nutrient Guidance”). Narrative criteria arise
from “verbal expressions of desired water quality conditions that are meant to
describe the unimpaired condition of a waterbody.” Id.
A state also may include variances in their proposed WQS. 40 C.F.R. §§
131.5(a)(4), 131.13. A WQS variance allows a state to improve water quality in
stages over a specified time period at locations that cannot yet meet the base WQS
criteria. 40 C.F.R. § 131.3(o). These WQS variances remain subject to the same
review standards and procedures as the WQS criteria. 33 U.S.C. § 1313(c); 40 C.F.R.
§ 131.14. Proposed WQS variances, like base WQS criteria, constitute part of a
state’s overall WQS package. See 40 C.F.R. §§ 131.13; 131.14.
Congress directed a state to submit its WQS package to EPA in the second
step of WQS development for a round of cooperative review and development. EPA
reviews whether the components of a state’s proposed WQS package “meet[] the
requirements” of the CWA. 33 U.S.C. § 1313(c)(3); Sanitary Bd. of City of
Charleston, W.V. v. Wheeler, 918 F.3d 324, 331 (4th Cir. 2019).
The CWA provides two possible outcomes for EPA review of a state’s
proposed WQS package. See 33 U.S.C. § 1313(c)(3). EPA may approve the proposal
within 60 days of submission. Id. EPA’s approval of a state’s proposed WQS
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transforms the proposal into the state’s “applicable [WQS] for purposes of the Act.”
40 C.F.R. § 131.21(c)(2). EPA alternatively may notify the state of the proposal’s
noncompliance with the CWA within 90 days of submission. 33 U.S.C. § 1313(c)(3).
EPA’s notice of noncompliance of a state’s proposed WQS with the CWA does not
result in the proposal’s termination. See id. At that point, EPA must explain the
proposal’s deficiencies and specify changes needed to make the proposal consistent
with the CWA’s requirements. Id.; 40 C.F.R. §131.21(a)(2). Congress designed this
stage to encourage active engagement between EPA and the state in an effort to
avoid federalization of the CWA.
A state has 90 days from notification of noncompliance with the CWA to
accept the changes specified by EPA. 33 U.S.C. § 1313(c)(3). Should the state fail
to accept the specified changes, the CWA requires EPA to step in and “promptly
prepare and publish proposed regulations setting forth a revised or new [WQS] for
the navigable waters involved.” Id. § 1313(c)(3), (4). EPA must adopt this proposed
regulation as the state’s new or revised WQS within 90 days from publication, unless
the state submits a new or revised WQS in the interim that EPA deems consistent
with the CWA’s requirements. Id. § 1313(c)(4). EPA’s notice of noncompliance
triggers a process of engagement between EPA and the state. This engagement
process continues until the parties reconcile the state’s proposal with the

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requirements of the CWA, or until EPA itself promulgates WQS for the navigable
waters involved. See id. § 1313(c)(3), (4).
FACTUAL BACKGROUND
Montana’s Development of Base Numeric Nutrient WQS and
General Variance WQS
EPA regulations direct states to establish numeric nutrient criteria. 40 C.F.R.
§ 131.11(b)(1). EPA regulations allow for adoption of narrative nutrient criteria only
“where numerical criteria cannot be established or to supplement numerical criteria.”
40 C.F.R. § 131.11(b)(2). In fact, EPA touts the development of numeric nutrient
criteria as “more useful than narrative criteria in a number of ways.” EPA Nutrient
Guidance, Waterkeeper II, Doc. 19 at 27. EPA’s guidance states, for example, that
“[t]he lack of numeric criteria makes it difficult to assess the condition of rivers and
streams and develop [WQS].” Id.
Montana became a national leader in the development of numeric nutrient
criteria WQS when it adopted and EPA approved stringent base numeric nutrient
WQS criteria (“base numeric nutrient WQS”) in 2015. Montana included a general
variance WQS from its base numeric nutrient WQS to provide a twenty-year period
of relaxed criteria for certain dischargers. Montana also included in its submission
to EPA two amendments to A.R.M. §§ 17.30.619(2) and 17.30.715(4)—the Poison
Pill—in anticipation of Montana’s adoption of a WQS package. The “selfexecuting” Poison Pill would void the base numeric nutrient WQS automatically
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upon occurrence of one of three triggering events: (1) a court invalidates the general
variance WQS; (2) EPA disapproves the general variance WQS; or (3) the general
variance WQS otherwise is not available. A.R.M. §§ 17.30.619(2), 17.30.715(4).
The Poison Pill would invalidate the base numeric nutrient WQS and return Montana
to less restrictive narrative criteria.
The Montana Board of Environmental Review (“BER”) adopted the Poison
Pill to ensure implementation of both the stringent base numeric nutrient WQS and
the general variance WQS. See 3 Mont. Admin. Reg. 280, 286-87, 293-94 (Feb. 13,
2014) (“The Legislature intended that variances be available to permittees once base
numeric nutrient [WQS] were adopted and both pieces (base numeric [nutrient
WQS] and variances) must remain together as a package.”). BER and DEQ did not
want EPA to approve only the stringent base numeric nutrient WQS due to the
inability of certain waters to achieve those WQS without time to adapt.
EPA approved the base numeric nutrient WQS and the general variance WQS
in February 2015. Rationale for the EPA’s Action on Montana’s New and Revised
Water Quality Standards, EPA, (Feb. 26, 2015), Waterkeeper II, Doc. 19 at 35
(“2015 EPA Decision and Rationale Letter”). EPA declined to act on the Poison Pill.
Id., Doc. 19 at 41. EPA deemed it “inadvisable for [Montana] to include such a
provision” in its proposed WQS package. Id. (emphasis added). EPA based its
rationale on its continued commitment to “collaboration with the state to implement
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th[e] nutrient rule approach consistent with CWA requirements, including the
adoption of variances.” Id. This cooperative relationship between EPA and the State
rendered the Poison Pill unnecessary as part of Montana’s WQS package. Id. EPA’s
inadvisability finding reinforced the CWA’s cooperative federalism framework. See
33 U.S.C. § 1313(c).
EPA regulations clarify that proposed WQS submitted to EPA do not become
“applicable [WQS]” for purposes of the CWA until EPA approves the WQS. 40
C.F.R. § 131.21 (citing 33 U.S.C. § 1313(c)). The Poison Pill never took effect as a
CWA standard because EPA never approved it as part of Montana’s WQS package
in 2015. See Alaska Clean Water All. v. Clarke, 1997 WL 446499, at *3 (W.D. Wash.
1997) (“Congress did not intend new or revised state [WQS] to be effective until
after EPA had reviewed and approved them.”).
Waterkeeper I
Waterkeeper challenged EPA’s approval of Montana’s general variance
WQS, and as amended general variance WQS adopted during the first litigation. The
Court determined that the general variance timelines violated the CWA because they
provided a “seventeen-year timeline to allow dischargers to meet the relaxed”
general variance WQS. 2019 Summary Judgment Order, Waterkeeper I, Doc. 177 at
32. The general variance timelines, as approved by EPA, provided Montana
dischargers with a variance that would “avoid attainment indefinitely rather than
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. . . make progress toward attainment” of the stringent base numeric nutrient WQS.
Id. at 31.
The Court’s 2019 Summary Judgment Order directed Defendants to undertake
the following corrective action: (1) “begin with a program that complies with the
relaxed criteria” of the general variance WQS; (2) “work toward ultimate attainment
of Montana’s Base [numeric nutrient] WQS in order to demonstrate progress toward
attainment”; and (3) “adopt a timeline for which attainment of Montana’s Base
[numeric nutrient] WQS would be feasible.” Id., at 29. The Court sought guidance
from the parties “as to the timing and scope of the appropriate remedies to address
the issues identified” in the Court’s 2019 Summary Judgment Order. Id. The Court
considered in its 2019 Remedies Order the additional briefs submitted by the parties.
2019 Remedy Order, Waterkeeper I, Doc. 184.
Waterkeeper’s preferred remedy asked the Court to impose two timelines on
Defendants: a first to provide “a reasonable period of time for dischargers of nutrient
pollutants to meet the highest attainable condition set forth in [the general variance
WQS]”; and a second to provide “a reasonable period of time for dischargers of
nutrient pollutants to meet the [base numeric nutrient WQS], necessary to protect
designated uses of Montana waters.” Waterkeeper I, Doc. 180 at 2.
DEQ asked the Court to stay its order of vacatur of the timeline portion of
EPA’s approval of the general variance WQS “until such time as EPA approves a
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replacement general variance [timeline], amended to be consistent with the Court’s
[2019 Summary Judgment] Order.” Waterkeeper I, Doc. 182 at 5. DEQ recognized
the Order’s limited reach to only the general variance WQS’s timelines. Id. at 6
(“The error recognized by the Court is limited primarily to the term of the [general]
variance [WQS], and much of EPA’s approval, including EPA’s approval of the
[general variance WQS] as the highest attainable condition, has been found to be
reasonable.” (emphasis added)). DEQ’s request for a partial vacatur and an
accompanying stay acknowledged the fact that “the revised general variance [WQS]
itself [wa]s not ‘irredeemable,’ . . . but d[id] need certain changes to address the
Court’s concerns for facilities that do not currently meet” the general variance WQS.
Id.
DEQ alerted the Court to the existence of the Poison Pill as a matter of state
law in its remedies briefing. Id. at 2 fn. 1. DEQ noted that Montana adopted the 2017
amendments to the general variance WQS, in part, to avoid expiration of its general
variance, given Montana’s three-year review requirement. Id. DEQ argued that
expiration of the original general variance WQS would have triggered the Poison
Pill. Id. DEQ’s fear of triggering the Poison Pill was misplaced given EPA’s
declination to approve the Poison Pill as a state WQS in 2015. See 2015 EPA
Decision and Rationale Letter, Waterkeeper II, Doc. 19 at 41.

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EPA’s preferred remedy involved a remand without vacatur of the portion of
the general variance WQS approval that addressed the variance’s timelines.
Waterkeeper I, Doc. 181 at 3. EPA requested that the Court limit its remand to the
portion of EPA’s approval of the general variance WQS—the timelines—that the
Court determined to be unlawful. Id. at 8. EPA alternatively argued, if the Court
chose to remand with vacatur, that the Court should stay the vacatur to allow DEQ
and EPA to address the Court’s findings. Id. at 3.
The Court outlined directions for Defendants to remedy the general variance
timelines error in a subsequent order issued July 16, 2019. 2019 Remedies Order,
Waterkeeper I, Doc. 184. The Court took into account the respective parties’
positions and ordered a partial vacatur of the general variance timelines. Id. at 6. The
Court was careful not to void the entire general variance WQS scheme adopted by
DEQ and EPA. Id. at 5. The Court instead only partially vacated a small subsection
of the general variance WQS, the portion conveying timelines. Id. The Court even
stayed the partial vacatur “until EPA approves a replacement general variance.” Id.
at 6 (emphasis added). The Court provided DEQ with 120 days to complete the state
rulemaking process, and EPA 90 days to complete its review of DEQ’s proposal. Id.
The Court intended for this remedy to build upon the CWA’s cooperative federalism
framework.

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EPA’s February 24, 2020 Action
DEQ conducted rulemaking following the Court’s 2019 Remedies Order.
DEQ submitted its revisions to the general variance timelines to EPA for approval
on November 26, 2019. DEQ’s submission to EPA included the following: (1) a
copy of the adopted revised general variance timelines and supporting
documentation; (2) notice of final adoption of the general variance timeline rules
with the state’s response to public comments; and (3) a letter certifying that the
changes were adopted in accordance with state law. Letter from Gregory Sopkin,
EPA Regional Administrator, to Shaun McGrath, DEQ Director (Feb. 24, 2020),
Waterkeeper II, Doc. 18 at 5 (“2020 EPA Decision and Rationale Letter”). Nothing
in the record indicates that DEQ resubmitted to EPA its 2014 proposed Poison Pill.
EPA previously had declined to act on the Poison Pill as a part of Montana’s WQS
package. See 2015 EPA Decision and Rationale Letter, Waterkeeper II, Doc. 19 at
41.
EPA “disapproved” DEQ’s submission on February 24, 2020. 2020 EPA
Decision and Rationale Letter, Waterkeeper II, Doc. 18 at 5. EPA justified its
decision by citing a lack of compliance with this Court’s Orders. Id. at 12-13. EPA
failed to provide DEQ with specific recommendations to cure defects or explain the
statutorily mandated schedule for review and ultimate approval of general variance
timelines. Id.; see also 33 U.S.C. § 1313(c)(3), (4). And EPA failed to clarify how

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best to reconcile DEQ’s needs with the requirements of the CWA. 2020 EPA
Decision and Rationale Letter, Waterkeeper II, Doc. 18 at 12-13; 33 U.S.C. §
1313(c)(3), (4).
EPA instead provided a terse, and contradictory, single-paragraph
“Specification of Necessary Changes.” 2020 EPA Decision and Rationale Letter,
Waterkeeper II, Doc. 18 at 12-13. EPA asserted in one sentence that “there are no
changes that the EPA must specify to meet the requirements of the Act when
disapproving a WQS variance.” Id. at 13. EPA nonetheless provided a purported
specification in the very next sentence. Id. EPA quoted this Court’s 2019 Remedies
Order and advised DEQ that, “to meet the CWA requirements as interpreted in the
court’s orders, the state must adopt ‘a reasonable timeline that begins with the
relaxed criteria of the [general] Variance Standard and leads to compliance with
[Montana’s base numeric nutrient] WQS.’” Id. (quoting 2019 Remedies Order,
Waterkeeper I, Doc. 184 at 5).
EPA also approved, unprompted, the Poison Pill from Montana’s 2014
proposed WQS package. Id. at 14-15. EPA insisted that the Poison Pill “was lawful
and permissible and that the [EPA] should have acted on these two provisions [in
2015].” Id. at 15. EPA clarified that it “expresses no view . . . as to the specific
circumstances, including today’s disapproval action, that could trigger [the Poison

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Pill], or as to any additional state processes that might be required to effectuate such
a change.” Id.
DEQ viewed EPA’s action as triggering the Poison Pill, despite EPA’s
disclaimer. Waterkeeper II Summ. J. Hr’g Tr., 30:20-23, Sept. 24, 2020, Doc. 71.
DEQ construed the triggering of the Poison Pill as vacating Montana’s base numeric
nutrient WQS and general variance WQS and substituting the more relaxed narrative
nutrient WQS criteria. Id., 30:23–31:11. Waterkeeper filed this separate action to
challenge EPA’s approval of the Poison Pill. Waterkeeper II, Doc. 1.
DISCUSSION
I.

Whether EPA’s February 2020 action lifted the stay of partial vacatur
imposed by the Court’s 2019 Remedies Order.
The Court inquired at the September 24, 2020 summary judgment hearing

about the status of the stay of partial vacatur imposed by the Court’s 2019 Remedies
Order. Waterkeeper II Summ. J. Hr’g Tr., 10:13–23, 14:6–23, 33:12–21, Sept. 24,
2020, Doc. 71. EPA asserted that the parties’ conduct following EPA’s action on
February 24, 2020, to disapprove DEQ’s new submission indicated a shared
assumption that the action effectively lifted the Court’s stay of partial vacatur. Id.
22:6–20. EPA argued that “[a]s a practical matter,” the stay is no longer in effect.
Id. 22:14. DEQ and Waterkeeper appeared to agree and are operating under the
assumption that the Court’s partial vacatur and EPA’s denial of DEQ’s submission
triggered the now-approved Poison Pill. See id. at 30:20–31:11.
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The Court disagrees with the parties’ assessment. The Court directed that its
stay of partial vacatur of the general variance timelines would remain in place until
EPA “approves a replacement general variance [timeline] in accordance with the
Court’s [2019 Summary Judgment] Order” in Waterkeeper I (Doc. 177). 2019
Remedies Order, Waterkeeper I, Doc. 184 at 6 (emphasis added). EPA has not yet
approved replacement general variance timelines. The Court’s stay of the partial
vacatur remains in effect. The original general variance timelines at issue in
Waterkeeper I will remain in place until the Court lifts the stay of the partial vacatur.
Courts routinely provide federal agencies with the opportunity to comply with
statutory requirements while maintaining the regulatory status quo. See, e.g., Nat.
Res. Defense Council, Inc. v. U.S. Envtl. Protection Agency, 2020 WL 5632410, at
*2 (D.D.C. Sept. 21, 2020) (staying vacatur of EPA approval under a different part
of the CWA to provide EPA with the opportunity to comply with statutorily
mandated timeline).
When this Court drafted the 2019 Remedies Order, it sought to reinforce and
emulate the cooperative federalism framework contemplated in the CWA. The Court
stayed its partial vacatur “until EPA approves a replacement general variance
[timeline] in accordance with the Court’s [2019 Summary Judgment] Order.” 2019
Remedies Order, Waterkeeper I, Doc. 184 at 6 (emphasis added). The Court based
the language “until EPA approves a replacement general variance [timeline]” on
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DEQ’s proposed remedy terms, EPA’s stated concerns about vacatur, and
Waterkeeper’s proposed timelines. Id. The Court included an approval schedule in
the 2019 Remedies Order, stating, “DEQ shall be given 120 days to complete the
state rulemaking process from the date of this Order. EPA shall be given 90 days to
complete its review of DEQ’s submission.” Id., at 5-6 (emphasis added). The Court
included a stay of the partial vacatur as a safety net, to remain in place until EPA
approved replacement general variance timelines in accordance with CWA
mandates. 33 U.S.C. § 1313(c)(3), (4).
EPA failed to uphold its end of the bargain. EPA did not follow through with
its assurance that vacatur served “little purpose” when it approved the Poison Pill
without prompting from DEQ. EPA’s approval of the Poison Pill invalidated
Montana’s base numeric nutrient WQS and instead substituted a reversion to
Montana’s outdated narrative nutrient criteria. EPA has failed to comply in good
faith with the CWA’s statutory mandate and its own representations to the Court that
partial vacatur would serve “little purpose” as “Montana likely will soon revise [the
general variance] with amended timelines.” Waterkeeper I, Doc. 181 at 16. EPA
instead appears to have tried to use partial vacatur of the general variance
timelines—even though stayed by the Court—to invalidate entirely Montana’s base
numeric nutrient WQS and general variance WQS.

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The Court will not lift its stay until EPA and DEQ reach general variance
timelines that meets the following CWA requirements: (1) begin with a program that
complies with the relaxed criteria of the general variance WQS; (2) work toward
ultimate attainment of Montana’s stringent base numeric nutrient WQS in order to
demonstrate progress toward attainment; and (3) adopt a timeline for which
attainment of Montana’s base numeric nutrient WQS would be feasible. 2019
Summary Judgment Order, Waterkeeper I, Doc. 177 at 29. The parties must follow
the procedural directives of 33 U.S.C. § 1313(c) in promulgating the revisions to
Montana’s general variance timelines.
The Court will reset its schedule from the 2019 Remedies Order to run from
the date of this Order. The parties must engage in a new round of rulemaking and
review to comply with the Court’s previous 2019 Orders (Docs. 177 and 184) and
the requirements of the CWA. DEQ retains initial jurisdiction over the remand to
develop revised general variance timelines. DEQ shall be given 120 days from the
date of this Order to adopt revised general variance timelines that comply with the
CWA. DEQ shall then submit to EPA its proposed general variance timelines as part
of its WQS. EPA shall be given 90 days to complete its review of DEQ’s submission.
33 U.S.C. § 1313(c).

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II.

Consolidation of Cases
Rule 42(a) of the Federal Rules of Civil Procedure permits a district court to

consolidate related cases sua sponte. Devlin v. Transp. Commc’ns Int’l Union, 175
F.3d 121, 130 (2d Cir. 1999) (citing In re Adams Apple, Inc., 829 F.2d 1484, 1487
(9th Cir. 1987)). Consolidation is acceptable when “actions before the court involve
a common question of law or fact.” Fed. R. Civ. P. 42(a). Courts should invoke Rule
42 to “expedite trial and eliminate unnecessary repetition and confusion.” Devlin,
175 F.3d at 130 (quoting Miller v. U.S. Postal Serv., 729 F.2d 1033, 1036 (5th Cir.
1984)).
Waterkeeper I (Cause No. CV-16-52) and Waterkeeper II (Cause No. CV-2027) involve the same underlying facts, law, and parties. Pending before the Court in
Waterkeeper I is the stay of the order of partial vacatur. 2019 Remedies Order,
Waterkeeper I, Doc. 184 at 6. Pending before the Court in Waterkeeper II is
Waterkeeper’s Motion for Summary Judgment (Doc. 12), and Defendants’ CrossMotions for Summary Judgment (Docs. 35, 39, 43, and 63). The Court orders the
consolidation of Waterkeeper I and Waterkeeper II to avoid unnecessary repetition
and confusion.
III.

Deferral of Ruling on Summary Judgment
Waterkeeper’s Complaint in Waterkeeper II challenges EPA’s approval of the

Poison Pill. (Doc. 1). The parties apparently have operated under the assumption that
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EPA’s disapproval of Montana’s revised general variance timelines in February
2020 triggered application of the Poison Pill. The Court disagrees. The Court’s stay
of its partial vacatur remained in effect. The as amended general variance timeline
remains in place due to the Court’s stay. No judgment by the Court—and no act by
Defendants—automatically triggered operation of the Poison Pill.
The Court has yet to rule on the pending summary judgment motions
regarding the legality of EPA’s approval of the Poison Pill. The Court will continue
to review the record before it. Significant evidence seems to demonstrate, however,
that EPA may have acted arbitrarily and capriciously, as well as unlawfully under
the CWA. EPA appears to have circumvented the CWA’s procedures for WQS
approval and failed to consider all appropriate factors when it approved the Poison
Pill. See Motor Vehicles Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983) (holding that agency acted arbitrarily and capriciously when it
failed to consider all appropriate factors before revoking seatbelt requirement from
vehicle safety standard).
The Court temporarily defers ruling on the pending motions for summary
judgment in Waterkeeper II (Docs. 12, 35, 39, 43, and 63). This Order serves
primarily to clarify the existing state of the case. The Court will conduct additional
review of the record before making a final ruling on the pending motions for
summary judgment regarding EPA’s approval of the Poison Pill.
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ORDER
Accordingly, IT IS ORDERED:
1.

Waterkeeper I (Cause No. CV-16-52) and Waterkeeper II (Cause No.

CV-20-27) are CONSOLIDATED.
2.

This Order incorporates by reference the partial vacatur and stay

imposed by the 2019 Remedies Order, Waterkeeper I, Doc. 184. The partial
vacatur shall be STAYED until EPA approves replacement general variance
timelines in accordance with this Court’s 2019 Summary Judgment Order,
Waterkeeper I, Doc. 177.
3.

The Court DEFERS ruling on the Motions for Summary Judgment

(Docs. 12, 35, 39, 43, and 63) in Waterkeeper II until it completes additional
record review.
Dated this 30th day of October, 2020.