ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
NACWA and its municipal partners helped secure a major litigation victory this week when a federal appellate court upheld the final total maximum daily load (TMDL) for the Chesapeake Bay, including its use of a watershed approach requiring nutrient reductions from nonpoint sources. The ruling from the U.S. Court of Appeals for the Third Circuit in American Farm Bureau, et al. v. EPA dismissed challenges to the final TMDL from agricultural and nonpoint dischargers and affirmed a lower court ruling upholding the TMDL.
Most notably, the decision rejected arguments from the agricultural challengers that TMDLs cannot include specific allocations for nonpoint sources. The court acknowledged that the language on TMDLs in the Clean Water Act is ambiguous, but concluded that including nonpoint allocations was both reasonable and lawful. In doing so, the court also recognized the important role of a watershed approach in equitably addressing water quality impairment concerns.
More analysis of the decision is available in Advocacy Alert 15-13, and NACWA also distributed a press release highlighting the importance of the ruling. NACWA played a key role in the case as an intervenor to help defend the watershed approach. The Association is very pleased with the decision and believes it is an important legal win for the clean water community.
NACWA continued its outreach efforts on Capitol Hill this week to urge Senators to oppose Section 428 of the Senate Appropriations Committee Fiscal Year (FY) 2016 spending package for EPA. Section 428 would prohibit wastewater agencies that discharge directly or indirectly to the Great Lakes from discharging overflows of any kind, including combined sewer overflows (CSOs) in compliance with the 1994 CSO Policy, and prohibit the discharge of blended effluent even if it meets National Pollutant Discharge Elimination System (NPDES) permit standards. The provision was inserted at the request of Senator Mark Kirk (R-IL) who has sponsored this legislation in the past and faces a tough reelection campaign next year.
Stormwater associations and organizations from around the country met on June 30 via conference call for the first meeting of the National Stormwater Advocacy Network (NSAN) . NACWA formed the NSAN based on feedback from these groups that was not a sufficiently coordinated effort to provide feedback on, and ultimately influence, national policy-making on stormwater issues. The NSAN will provide peer-to-peer interaction and will build on the work that State and regional clean water groups have started over the last two years as part of an ongoing collaboration on important national and regional issues. The NSAN will allow for broad engagement by the public sector on advocacy issues and will collaborate closely with NACWA's Stormwater Management Committee to help shape policies in Congress, EPA, at other state, regional and federal agencies and in the Nation’s courtrooms.
Five EPA staff joined the NSAN’s first call to brief participants on regulatory modifications EPA is considering in response to an ongoing legal challenge to the Phase II program. Environmental NGOs are claiming that the Agency has failed to comply with a 2003 decision that mandated EPA strengthen its small municipal separate storm sewer systems (MS4s) rules. EPA is now considering options to address concerns regarding the need for permitting agency review of notices of intent (NOIs) submitted by small Phase II MS4s as well as providing sufficient opportunity for public review and comment (see case description). Minutes from the call, which contain EPA’s slides, reflect the excellent feedback that state and regional leaders provided on behalf of their Phase II members, and the NSAN is considering submitting more formal comments as this process continues. Please contact Brenna Mannion with any questions or comments on the Phase II remand or how it may affect NACWA members.
NACWA provided EPA with influent and effluent mercury data from 41 wastewater treatment facilities, in response to the Agency’s request for more detailed information related to the Association’s February 20 comments on the proposed Dental Amalgam Separator Rule . In its comments, NACWA argued that current mercury removal efficiencies are much higher than the 90 percent efficiency from the 1982 POTW Study, which was the value EPA used in calculating the benefits of the proposed rule. NACWA provided summary data from its Mercury & Dental Amalgam Separator Survey to support this argument, and EPA asked for individual sample concentrations rather than a summary. Utilities that used the sensitive Method 1631 to measure mercury concentrations in both influent and effluent provided this information to NACWA. Although NACWA is still analyzing the mercury data, it appears that the data will support NACWA’s argument that the benefits of the proposed rule have been significantly overestimated.
On July 9, the U.S. Court of Appeals for the Seventh Circuit issued a strong legal victory for NACWA member agency the Metropolitan Water Reclamation District of Greater Chicago (MWRD) and for the clean water community at large. The court upheld the wet weather consent decree as negotiated by the parties in United States, et al. and Alliance for the Great Lakes, et al. v. Metropolitan Water Reclamation District of Greater Chicago over the objections of environmental activist groups. The activist groups intervened in the case to challenge the consent decree, arguing that the combined sewer overflow controls were inadequate to achieve water quality compliance and green infrastructure projects were insufficient. A lower court dismissed the activists’ claims, leading to this appeal.
The court’s order will serve as strong legal precedent for clean water agencies elsewhere in the country seeking to have consent decrees approved over objections from citizen groups. The Seventh Circuit’s analysis of the role of intervenors in a consent decree challenge when the government is “diligently prosecuting” the lawsuit at hand is of particular importance:
Private intervenors are supposed to “supplement rather than to supplant” public litigation….Why would anyone settle with the EPA or a state, if the settlement did not buy peace? The District made costly promises, but if the Alliance is right then it got nothing in return, for the Alliance can carry on with the suit. And if the Alliance also settled, then another person could intervene to demand still more relief.
The court went on to acknowledge the importance of adaptive management and flexibility in consent decrees long-term wet weather plans given the complexities of the projects and inability to predict the future:
[T]he District is so large, and the locations of potential outfalls so numerous, that it’s just not practical to try to cover all details in one document. The EPA anticipates working out details as time passes …and if the District does not cooperate the court can afford supplemental relief.
As for what happens in 2029 or later if untreated discharges continue at an unacceptable rate, the next steps ought to depend on what’s not then working well. If the EPA (or a court) could be sure in 2014 what the exact nature of the problem (if any) would be in 2029, then it would be sensible to start planning and building the remedy today; but if either there won’t be a serious problem in 2029, or the problem is something not now foreseen, then relying on a 2014 decree for the solution would be foolish. Yogi Berra observed that it is hard to make predictions, especially about the future. State and federal agencies are entitled to rely more on experience and less on predictions.
NACWA submitted an amicus brief in the case in December 2014 supporting MWRD’s position and arguing in favor of the consent decree as negotiated by the parties, although the court ultimately did not accept the brief due to procedural issues. NACWA has long supported the position that activist groups should not be able to alter consent decrees negotiated between utilities and federal and state regulators, and is very pleased with this week’s decision.
The Senate Environment and Public Works (EPW) Committee’s reauthorization package for highway projects contains a provision that would enable projects receiving funding through the Water Infrastructure Financing and Innovation Act (WIFIA) program to use tax-exempt municipal bond financing as a match for the federal dollars received. Key water sector organizations, including NACWA, have been supportive of this key change.
Ohio Places New Burdens on POTWs in Response to Toledo Water Crisis
Guest blog from Erica M. Spitzig an Attorney at NACWA Member, Graydon Head & Ritchey LLP in Cincinnati, on new legislation in Ohio that attempts to respond to the toxic algal blooms that shut down water service to approximately 500,000 customers in Toledo last summer. This new requirement will impact over 500 POTWs across the state, but how will it impact Lake Erie and the rest of the Great Lakes? Read on to find out more.