Volume 15, Number 3
Fall 2003

The 9th Circuit Court of Appeals affirmed U.S. District Court Judge Molloy's order, which established a schedule and 2007 deadline for cleanup plans for Montana's polluted waterways. The decision is a wakeup call to state and federal agencies, and an incredible victory for clean water, bull trout and other native fish and Montana's economy.

Montana's waters and native species may become healthier under new court rulings.

The district court's order restricts the issuance of new permits or increased pollution discharges for water quality limited segments (WQLSs), which are already in violation of state water quality standards.

The original action, Friends of the Wild Swan et al. v. EPA et al., was brought by five Montana environmental groups: Alliance for the Wild Rockies, American Wildlands, Ecology Center, Montana Environmental Information Center, and Friends of the Wild Swan. Appellants-Defendants included the U.S. Environmental Protection Agency, State of Montana, Department of Environmental Quality, Montana Wood Products Association, Montana Stockgrowers Association, and Montana Farm Bureau. An important implication of the decision is that the State of Montana and EPA must take aggressive action to establish abatement strategies or TMDLs (total maximum daily load), plus a margin of safety, to prevent excessive pollution loads from entering impaired waterways.

The 1972 Clean Water Act (CWA) is intended to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" and to achieve "water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water" by 1985. Over 30 years later, the Nation's waters, including thousands of sites in Montana, suffer from a host of "non-point" pollution problems caused by logging, mining, agriculture and other uncontrolled runoff. The district court said it best: "At its current pace, the state will need over one hundred years to develop the 3,000 TMDLs required for WQLSs identified in 1998. The net result will be to put off for another generation a mandate that Congress required be taken years ago."

Clean Water Act's citizen suit provision, which allows citizens to sue to enforce the provisions of the Act and compel the state and EPA to perform their mandatory duties, has once again given hope to those committed to protecting Montana's water resources. Although the fight is never over, this 9th Circuit Court victory is proof positive that the combination of creative grassroots strategies, a passionate, dedicated legal team, plus persistence can produce giant steps toward our goals to protect clean water and restore dwindling native fish populations.

The bottom line: The State of Montana and EPA must immediately abandon their current pattern of unreasonable delay and lackadaisical cleanup efforts. The clock is ticking.