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NACWA and the municipal clean water community. The High Court’s
decision echoes many of the arguments made in a
joint brief
filed last
September by NACWA and a number of coalition partners encouraging
the Court to allow for immediate judicial review of AOs. The decision is
important because it will allow utilities that receive AOs, and have con-
cerns about the underlying validity of the order, to nowmove for imme-
diate judicial review of the AO – before EPA begins formal enforcement
proceedings. The ability of clean water utilities to now immediately
challenge these compliance orders should help to curb EPA’s use of AOs
to coerce action from public water agencies. NACWA is pleased with
the court’s ruling and believes that it will benefit members who are cur-
rently dealing with federal AOs or will be in the future.
United States v. Cities of Vancouver and Renton
NACWA submitted a
brief
February 9 to a federal court inWashington
State supporting a municipal legal challenge against the U.S.
Department of Justice (DOJ) over unpaid stormwater charges from a
federal government facility. NACWA’s brief argues that a recent amend-
ment to the CleanWater Act (CWA) clarifying federal responsibility for
payment of municipal stormwater charges also requires payment of
past due amounts assessed prior to the bill’s passage. The brief focuses
on the legislative history accompanying the amendment to support the
argument that Congress intended for the bill to mandate payment of
past-due stormwater charges from federal properties. Additionally, the
brief provides an important national perspective on the impact the rul-
ing in the case could have on municipal stormwater agencies elsewhere
in the country.
NACWA v. EPA
NACWA learned in early February that the U.S. Environmental
Protection Agency (EPA) is planning to officially deny the Association’s
administrative petition for reconsideration of the Agency’s recent sew-
age sludge incineration (SSI) rule. While NACWA is disappointed
with this action, it is not entirely surprising given EPA’s indication last
August that it would likely deny the Association’s request. Since this
denial occurred before the start of briefing in NACWA’s parallel legal
challenge, the Association will now be able to incorporate EPA’s denial
of reconsideration into the legal case. Briefing has accordingly been de-
layed to account for this development, and a revised briefing schedule
will be submitted to the court no later than June 1. NACWA is hopeful
that opening merits briefs will be filed soon thereafter, with all briefing
completed by late 2012.
Upper Blackstone Water
Pollution Abatement District v. EPA
A federal appeals court held oral arguments January 12 in a case involv-
ing contested nutrient limits from a municipal discharge permit, and
expressed significant reservations with U.S. Environmental Protection
Agency (EPA) actions. The case involves a challenge by NACWAmem-
ber agency the Upper Blackstone Water Pollution Abatement District
(Millbury, Mass.) to inappropriate nutrient controls in the utility’s per-
mit. The court indicated strong concern that EPA had failed to take
into account appropriate modeling and scientific data, echoing argu-
ments made by NACWA in a November 2011 supporting
brief
. The
court
recommended
sending the matter to mediation, with directions
that EPAmust take into consideration new information on the perfor-
mance of Upper Blackstone’s treatment plant and newmodeling data in
setting nutrient limits.
Florida Wildlife Federation v. EPA
Amuch-anticipated
ruling
in litigation over U.S. Environmental
Protection Agency (EPA) federal nutrient criteria for Florida was re-
leased on February 18, when a federal court struck down key elements
of the criteria while at the same time upholding the Agency’s decision to
impose federal criteria in place of existing state standards. The ruling
is consistent with arguments made by NACWA in a
brief
filed last June
that contested the scientific basis for EPA’s nutrient limits. However, the
court also dismissed all challenges to EPA’s federalization of Florida’s
criteria, finding that EPA acted properly in replacing the existing state
narrative approach with federal numeric criteria. This decision runs
counter to arguments made by NACWA and others that EPA violated
the CleanWater Act (CWA) and illegally usurped the state’s primary role
in setting water quality standards. NACWA is concerned about this de-
cision’s potential national precedent in other states where EPAmay seek
to federalize criteria, and will closely monitor developments.
NACWA in the Courtroom
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