A Clear Commitment to America’s Waters
53
N
ACWA has been busy in recent weeks, aggressively advo-
cating in the nation’s courtrooms and working to pro-
vide the Association’s members with valuable legal re-
sources. Additional information on the cases below and
all of NACWA’s litigation activities is available on the Association’s
webpage.
Court Dismisses Water Quality Trading Challenge
A federal court
an environmental activist challenge to
water quality trading programs in the Chesapeake Bay on Dec. 13,
providing a key legal victory for trading programs both within the Bay
watershed and nationwide. The court dismissed the case on proce-
dural grounds and did not rule directly on the merits of whether water
quality trading programs in general are legal under the CleanWater
Act (CWA). There is, however, language in the decision suggesting that
specific trading programs and offsets can be legal as long as they com-
ply with the overall requirements of the CWA. NACWA joined with a
number of other municipal organizations to
in the litigation
in early 2013 in defense of water quality trading. The Association ap-
plauds the decision and the positive language in the ruling in support
of trading programs.
NACWA Acts to Defend Permit Shield
On January 7, NACWA joined a coalition of groups
to file a
in a case before the U.S. Court of
Appeals for the Fourth Circuit supporting the “per-
mit shield” defense available to dischargers under
the CWA permitting program. The permit shield
defense, which holds that a discharger in full com-
pliance with their discharge permit cannot be sued
for violation of the permit, is a critical one for permittees under the
CWA. Although the facts of the case deal with a mining permit, a rul-
ing from the Fourth Circuit will have national implications for munici-
pal wastewater and stormwater utilities. Given the importance of the
permit shield to NACWAmembers for protection from citizen suits,
the Association is participating in the case to help preserve the permit
shield as a strong and robust defense to enforcement actions.
Brief Filed on Nutrient Permit Limit Issue
In late December, NACWA collaborated with the Wet Weather
Partnership and a number of state municipal clean water groups to
the flexibility of permitting agencies in crafting nutrient limits
for discharge permits. The brief was filed with the U.S. Environmental
Appeals Board (EAB) in an administrative
addressing
whether discharge permits must include true daily maximum limits
for nutrients rather than weekly/monthly average limits. The appeal
could have broad national implications on how to set “daily” discharge
limits for nutrients. The joint municipal brief supports the discre-
tion of permitting authorities to translate total maximum daily load
(TMDL) daily targets into more flexible and appropriate average limits
in specific permits, especially for nutrients.
Work Underway to Update Consent Decree
Negotiation Handbook
NACWA is in the process of developing a new
2014Wet Weather Consent
Decree Handbook
. The first Handbook, released in 2003, was extremely
well received by the membership and has served as a
valuable tool for municipal attorneys, managers, and
staff to use during negotiations over federal or state
enforcement actions. But the consent decree negotia-
tion landscape has changed drastically in recent years
with new challenges coming into play related to inte-
grated planning, affordability, climate/resiliency, green
infrastructure, and consent decree modification. The
new
Handbook
will address many of these emerging is-
sues and provide NACWAmembers with a cutting-edge
resource to assist them in navigating the consent decree process. The
document is scheduled for release in April 2014 as an online publica-
tion, which will be a more searchable, revisable, accessible and interac-
tive tool for the NACWAmembership.
NACWA Active in Litigation, Legal Advocacy
Winter Conference
Sawyers to Keynote Conference
Keynote speaker Andrew Sawyers, Director of the U.S. Environmental
Protection Agency’s (EPA) Office of Wastewater Management, will ad-
dress the regulatory issues that are a focus of the Agency today and
the possible direction that may be taken on these issues. Featured
speaker Mike Hightower from Sandia National Laboratories will ex-
plore the cooperation between energy and water utilities that could
be an important component of the Utility of the Future model of
resource recover at clean water agencies. In addition, panel presenta-
tions will focus on a number of the regulatory and technical
challenges – and opportunities – facing the clean water community
today, including nutrient control, integrated planning, wet weather
compliance, and inappropriate products flushed into the sewer sys-
tem.
Additional information on NACWA’s 2014 Winter Conference can be
found at
