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A Clear Commitment to America’s Waters
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R
ecent weeks have found NACWA active in legal advocacy as
the Association participated in a series of lawsuits on nutri-
ent and nonpoint source issues – and prepared to file briefs
in two cases involving biosolids management. NACWA
also plans engagement in an upcoming CleanWater Act (CWA) case be-
fore the U.S. Supreme Court on stormwater and water transfers issues.
Nutrients Cases Take Center Stage
NACWA has continued its aggressive response to two federal nu-
trients lawsuits filed in March by the environmental activist com-
munity, one on secondary treatment requirements and the other on
federal numeric nutrient criteria. The Association’s engagement in
both cases is focused on ensuring that the interests of the municipal
clean water are protected.
NACWA has been in close communication with U.S. Environmental
Protection Agency (EPA) regarding the secondary treatment litiga-
tion,
. The conver-
sations have been critical in ensuring the Association’s position is
considered as EPA plans a response. These efforts follow the grant-
ing of NACWA’s late May intervention in
a companion activ-
ist lawsuit seeking imposition of federal numeric
nutrient criteria for all waters in the Mississippi
River basin. Both cases are still in their early
phases and anticipated litigation.
NACWA also filed its reply brief July 13 in federal
litigation over the final nutrient total maximum
daily load (TMDL) for the Chesapeake Bay – re-
iterating the Association’s support for a holistic
watershed approach to nutrient management
including nonpoint sources. As an intervenor
in the
litigation,
NACWA is supporting EPA’s legal authority to
include load allocations upstream nonpoint ag-
ricultural discharges, as part of the final TMDL
to reduce overall nutrient impairment in the Chesapeake Bay. The
Association’s recent reply brief highlights the importance of includ-
ing all sources of nutrient impairment in the TMDL to achieve the
most effective and equitable approach to water quality improvement,
and rebuts many of the plaintiff ’s legal claims against inclusion of
nonpoint sources. Briefing in the case is now complete, and NACWA
expects a decision in the case in the coming months.
Biosolids Litigation Moves Forward
NACWA is also active in two cases dealing with biosolids manage-
ment. On July 24, the Association submitted its opening brief in
a legal challenge to EPA’s final sewage sludge in-
cinerator (SSI) rule. In anticipation of EPA’s finalization of the rule
last year, NACWA formed a Sewage Sludge Incineration Advocacy
Coalition (SSIAC) to support a lawsuit over the new regulation.
NACWA’s brief argues that EPA’s legal and technical basis for the
new SSI rule were flawed, and that the Agency promulgated the new
regulations under the incorrect section of the Clean Air Act. The
brief does not dispute EPA’s ability to regulate air emissions from
SSI units, but instead argues the new rule sets overly stringent lim-
its that fail to account for a cost/benefit analysis as intended by
Congress, and that will likely lead to many utilities shutting down
their SSI units at significant cost. Additional briefing in the case
will occur throughout the rest of the year, and the court is expected
to issue its decision in early 2013.
Biosolids land application will also be getting legal attention in the
coming week, as NACWA files a
in support of a number of
Association members in Southern California challenging a discrimi-
natory local land application ban enacted by Kern County, Calif.
The case was previously litigated in federal court, but after being dis-
missed on a technicality was refilled in state court. NACWA’s util-
ity members were successful in obtaining an injunction against the
ban, and are now seeking to defend the injunction on appeal. The
Association’s brief, to be filed in early August, will provide the na-
tional clean water perspective on the importance of preserving land
application as a viable biosolids management option, and outline
the significant harm that could occur to the
national biosolids management system if in-
equitable local bans such as Kern County’s are
allowed to stand.
NACWA to Weigh In With
Supreme Court on CWA Case
Finally, in a surprising turn of events, the U.S.
Supreme Court announced at the end of June
that it would review two CWA cases related to
stormwater when the Court’s next term begins
in October 2012. One of the cases,
Los Angeles
County Flood Control District v. NRDC
, looks at
the question of what qualifies as a discharge
from a stormwater system under the CWA. It
also has the potential to address the water
transfers issue and whether the transfer of wa-
ter from one section of a waterbody through a manmade channel to
another section of the same waterbody falls under CWA permitting
requirements. This case has potential implications for MS4s and
other clean water utilities, both in terms of what qualifies as a dis-
charge as well as for those that may transfer water from one section
of a waterbody to another as part of their water management efforts.
Given these potential impacts, NACWA will be joining a brief in the
case on behalf of the municipal clean water community, urging the
High Court to affirm its previous decisions that such transfers of
water do not require a CWA discharge permit. Briefing is expected
to occur in early August.
Additional information on all of NACWA’s litigation activities can
be found on the
of the Association web-
site.
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NACWA Busy in the Courtroom