The U.S. Environmental Appeals Board (EAB) released an important ruling March 19 in the long running matter of the District of Columbia Water and Sewer Authority’s (DCWASA’s) appeal of a National Pollutant Discharge Elimination System (NPDES) discharge permit.  The decision gave NACWA and its member agencies a key legal victory on a number of different issues, including the importance of including compliance schedules in permits for communities under a long term control plan (LTCP) for combined sewer overflows (CSOs), the need for a compliance schedule to achieve more stringent nitrogen limits, and the prohibition against EPA changing permit language without proper public notice and comment.  NACWA filed joint briefs with the Wet Weather Partnership (WWP) in August and October 2007 supporting DCWASA’s appeal, and the EAB’s decision closely tracks many of the legal arguments made by NACWA in its briefs.

This Alert summarizes the Board’s decision and its implications for NACWA members.  A copy of the decision is available in the Litigation Tracking section of NACWA’s Member Pipeline, or by clicking here. NACWA’s participation in this case was supported by the Association’s Targeted Action Fund (TAF), and NACWA worked with Legal Affiliate Aqualaw to draft the amicus curiae briefs.  Please feel free to contact NACWA’s General Counsel Keith Jones at 202/533-1803 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spam bots, you need JavaScript enabled to view it with any questions regarding this case or NACWA’s ongoing legal activities.

I.    Background

NACWA has been supporting member agency DCWASA in this case since 2005, when EPA Region III issued a revised NPDES permit for DCWASA’s Blue Plains Wastewater Treatment plant that did not contain a compliance schedule for implementation of the District’s LTCP to control combined sewer overflow discharges.  DCWASA appealed the permit on the grounds that EPA was in error not to include a compliance schedule, and NACWA and the WWP filed a joint motion to participate in the appeal and support DCWASA due to the importance of compliance schedules for those agencies attempting to develop or implement LTCPs.  However, EPA then announced that it was going to revise and reissue the NPDES permit and all activity in the case was put on hold.

A modified permit was not issued by EPA until April 2007, which also did not contain a compliance schedule.  Additionally, the new permit mandated significant nitrogen reductions and did not include a compliance schedule outlining the timeframe which DCWASA would have to bring the nitrogen levels in its effluent down to the levels set forth in the permit.  Accordingly, DCWASA appealed the new permit both on the grounds that it lacked a compliance schedule for implementation of the LTCP and because it lacked a compliance schedule for implementation of the nitrogen reductions.  Additionally, a number of environmental groups including the Chesapeake Bay Foundation, the Friends of the Earth, and the Sierra Club also appealed the permit regarding the lack of a compliance schedule for the nitrogen reduction and the modification of a permit provision relating to compliance with the District of Columbia’s water quality standards without proper notice and comment.

NACWA and the WWP filed a joint brief with the EAB in August 2007 arguing the importance of having a compliance schedule in the permit consistent with the LTCP and filed a second brief in October 2007 on the need for a compliance schedule for DCWASA to meet the new nitrogen limits.  Oral arguments in the case were heard before the Board in November 2007.

II.    The EAB Decision

The EAB ruling addressed three major issues raised by the petitioners in the appeal.  The most important issue addressed by the Board and the primary focus of NACWA’s brief involved the lack of a compliance schedule in the permit.  Both DCWASA and NACWA argued that the District of Columbia’s own water quality regulations require that a compliance schedule must be included in a discharge permit, and that a compliance schedule must be included not only for DCWASA’s LTCP but also for compliance with the new  nitrogen limits found in the permit.  The EAB ultimately agreed with this argument and ruled that where a state or local regulation, such as the District’s, “mandated the inclusion of a compliance schedule, EPA must include one.”  The EAB also cited directly to the NACWA/WWP brief in making this decision, rejecting EPA’s arguments and stating that even if EPA did include a compliance schedule in the consent decree with DCWASA, this “does not preclude contemporaneous deployment of a compliance schedule in a permit, especially when a schedule is required under the state water quality regulations.”  The Board then remanded the permit back to EPA Region III with instructions to add compliance schedules to the permit for both the LTCP and the new nitrogen reductions.

The second issue addressed in the ruling from the Board involved a challenge by DCWASA to the nitrogen limits included in the permit, specifically challenging the calculations that EPA used to derive the nitrogen limit.   NACWA and the WWP did not take a position on this issue.  The EAB ultimately rejected DCWASA’s challenge on this issue and found that the nitrogen limit included in the permit was properly calculated based on the Chesapeake Bay Program allocation for the District of Columbia.  The limit was based upon a prior political/technical allocation of nutrients among the Chesapeake Bay states and was then implemented through revisions to the Virginia, Maryland, and DC water quality standards regulations.  Since challenging this agreed upon allocation could potentially divide NACWA members in the Chesapeake Bay watershed, NACWA abstained from this aspect of the case.  DCWASA will have an opportunity to revisit its allocation argument during an upcoming total maximum daily load (TMDL) for nutrients for the Chesapeake Bay.

The third issue addressed in the EAB’s decision focused on the removal of some CSO compliance language in the final permit which had been included in the previously issued draft permit and for which there was no notice or comment period regarding the removal of the language.   The EAB found that removal of the compliance language constituted procedural error where the removal was not proposed in the draft permit language and there was not an appropriate notice and public comment period over the removal.  Accordingly, the Board ordered EPA to either include the removed language in the final permit or reopen the public comment period to provide public opportunity to comment on the removal of the language and then respond to any such comments received.

III.    Impact on NACWA Members

This case represents a significant victory for NACWA members because it reestablishes state primacy over compliance schedules and stands for the proposition that permitting agencies cannot simply change permit requirements without the opportunity for permittee and public comment on the change.  These two issues affect all NACWA members and the favorable resolution by the EAB is an important national precedent.   The clear direction from the EAB to include compliance schedules in permits where required by state regulation is an especially important victory for CSO communities because it ensures that clean water agencies who adhere to the compliance schedules in their permits will be able to defend themselves from certain enforcement actions with the permit as a shield defense.   Additionally, the decision reinforces the key role that compliance schedules play in helping CSO communities meet their long-term water quality goals, not only within judicial consent decrees but also in the permitting context.  NACWA is very pleased with this decision and will continue to track any future developments involving this vital issue.