» Update Archive

The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Spring 2011 Legal Update.  This Update provides summaries of current legal initiatives and discusses developments in NACWA’s litigation matters.  Please contact NACWA’s General Counsel, Nathan Gardner-Andrews, at 202/833-3692 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions on items included in this Update or NACWA’s legal advocacy efforts.  Additional information on all of NACWA’s ongoing litigation can also be found on the Litigation Tracking page of NACWA’s website, which can be accessed by clicking here or by locating it in the Legal Resources section under the Member Pipeline tab at www.nacwa.org.

Legal Affairs Committee Meets at Policy Forum, Will Meet Again in July

The Legal Affairs Committee met in May as part of NACWA’s 2011 National Environmental Policy Forum to discuss a variety of issues.  The meeting kicked off with a detailed update on NACWA’s legal challenge to the Environmental Protection Agency’s (EPA) new rules impacting biosolids and sewage sludge incineration, including the recent filing of NACWA’s legal challenge to the final sewage sludge incineration (SSI) rule.  The Committee also received an update on the Association’s efforts to challenge nutrient criteria developed by EPA for Florida.  Committee members then discussed a number of new litigation matters approved by the NACWA Board of Directors, including participation in a legal case over the finalized total maximum daily load (TMDL) for the Chesapeake Bay, as well as support for NACWA member the City of Akron, Ohio in appealing the rejection of their proposed wet weather consent decree.   More information on all these cases is located below.  The meeting wrapped up with a discussion of EPA’s planned regulatory review process and the potential impacts on NACWA members. The next Legal Affairs Committee meeting will be held on July 19 as part of NACWA’s Summer Conference in Chicago– we hope you will be able to join us!

Save the Date for NACWA’s 2011 Law Seminar in Charleston, SC

Mark your calendars now for the 2011 Development in Clean Water Law Seminar which will be held November 16 -18, 2011 at the Francis Marion Hotel in Charleston, South Carolina.  A planning committee for the Seminar will be formed in July and will meet during the Summer Conference in Chicago to begin developing the agenda.  Any ideas for the Seminar can be forwarded to Nathan Gardner-Andrews at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

CURRENT CASES

NACWA Initiates Legal, Administrative Challenges to EPA’s Sewage Sludge Incineration Rule

NACWA filed a legal petition for review with the federal District of Columbia Circuit Court of Appeals on May 6 to challenge EPA’s final Sewage Sludge Incinerator (SSI) rule, initiating the litigation of NACWA v. EPA and marking the start of NACWA’s planned legal advocacy efforts against the new SSI regulations.  Additionally, the Association filed an administrative petition for reconsideration of the rule with EPA on May 24.  EPA finalized the SSI rule and a companion definition of solid waste rule in February.  Both rules will have significant negative economic and operational impacts on clean water utilities that rely on SSIs for the safe and efficient management of biosolids.  In addition to initiating challenges to the SSI rule, NACWA will also file a legal challenge to the solid waste rule on June 17.  NACWA’s primary arguments in the challenge to the SSI and solid waste rules are based both on a statutory argument regarding EPA’s failure to properly regulates SSIs as directed by Congress, and a legal/technical argument based on EPA’s decision to develop new SSI regulations based on flawed data and a lack of understanding of SSI unit operation or biosolids management practices in general.

In response to these new rules, NACWA has formed a Sewage Sludge Incineration Advocacy Coalition (SSIAC) made up of NACWA member agencies and other clean water utilities that operate SSIs to support a legal and administrative to the final regulations.  All clean water agencies that operate SSIs are invited to join the SSIAC, and any NACWA members with SSIs that have not yet joined the coalition are encouraged to do so by contacting Nathan Gardner-Andrews at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Though NACWA is mounting a comprehensive legal effort to seek changes to the U.S. Environmental Protection Agency’s (EPA) final rules, both rules have now been finalized and will remain in effect until a court rules otherwise.  Accordingly, NACWA prepared detailed Advocacy Alerts (AA 11-11 and AA 11-12) on both rules to outline for member agencies the requirements and impacts the rules will have on clean water utilities.

Association Requests Intervention in Chesapeake Bay Daily Loads Case

NACWA filed a Motion to Intervene May 25 in the case of American Farm Bureau, et al. v. U.S. Environmental Protection Agency (EPA) as an intervenor defendant to protect the interests of its municipal clean water agency members in the litigation and defend EPA’s ability to address all sources of water quality impairment.  The case is being brought by a collection of agricultural interests attempting to remove themselves from the TMDL process and arguing that EPA has no authority to regulate or assign allocations to nonpoint agricultural sources.  These claims present a significant threat to the comprehensive watershed approach upon which point source interests are highly dependent and which NACWA strongly supports, and could result in increased regulatory pressure on point sources such as municipal wastewater and stormwater dischargers.  For this reason, NACWA seeks intervention in the case to ensure that the interests of NACWA’s public utility members are protected and to ensure that EPA’s ability address nonpoint sources and administer a holistic watershed approach through the TMDL program is upheld. NACWA is participating in the case along with the Maryland Association of Municipal Wastewater Agencies (MAMWA) and the Virginia Association of Municipal Wastewater Agencies (VAMWA), and will be filing additional pleadings in the litigation over the coming months.

Legal Battle over Florida Nutrient Criteria Heats Up, NACWA Files Amicus Brief

NACWA filed an amicus brief June 15 in the case of Florida Wildlife Federation v EPA, outlining the Association’s position in the growing legal fight over EPA’s recently developed numeric nutrient criteria for Florida and supporting the Association’s Florida member utilities in their Motion for Summary Judgment challenging the new nutrient regulations.  NACWA’s brief highlights the legal flaws in EPA’s decision to overstep its Clean Water Act (CWA) authority by promulgating numeric nutrient criteria for Florida, and also expresses concern with the controversial scientific method used by EPA to develop the criteria.  The Association’s brief not only supports a challenge to the criteria already filed by NACWA members in Florida, but also argues that the criteria development approach utilized by EPA in Florida should not be used in other parts of the country.  Additionally, NACWA provides the court with a valuable national viewpoint on nutrient policy and science from the perspective of the municipal clean water community.   The criteria at issue were finalized by EPA in November 2010 for freshwater lakes, streams, and rivers in Florida.  NACWA was previously granted amicus participation by the court in May, and will file additional pleadings in the case if necessary.

Federal Judge Voids Proposed Wet Weather Consent Decree Plan, NACWA to Support Member in Appeal

In March, in a highly unusual judicial action, a federal district court in Ohio rejected a proposed wet weather consent decree for NACWA member the City of Akron, Ohio.  The court refused to enter the proposed decree even though it had been agreed to and was supported by the City, the federal government, and the state government.  Akron has filed an appeal of the district court’s decision not to enter the decree with the U.S. Court of Appeals for the Sixth Circuit, and NACWA will be filing an amicus brief in support of the city’s appeal.  NACWA’s brief will highlight the importance of district court judges granting deference to the consent decree negotiation process, especially to a decree that has been mutually agreed to by the municipality and the federal and state governments after engaging in a comprehensive negotiation process.  The brief will also discuss from a national perspective how disruptive it will be to the overall consent decree negotiation process if cities cannot rely on the federal courts to approve agreements they reach with federal and state regulators.  Additionally, the brief will outline the significant problems that occur when federal judges attempt to substitute their views on highly technical consent decree matters such as engineering designs and financial capability assessments for those of municipal, federal, and state experts as agreed upon during the consent decree negotiation process.  The brief may also address a number of unique standing issues that are at play in the case.  Briefing is expected to occur in mid-July.

NACWA Tracks Implementation of BEACH Act Litigation Settlement, Development of New Recreational Water Quality Criteria

NACWA continues to monitor EPA’s implementation of the 2008 settlement agreement in the Natural Resources Defense Council v. EPA litigation, especially the Agency’s efforts to develop new recreational water quality criteria.   NACWA intervened in the litigation and played a major role in crafting the settlement agreement, which requires EPA to implement the requirements of the Beaches Environmental Assessment and Coastal Health Act (BEACH Act), including completion of the necessary scientific studies to develop new recreational water quality and publication of the resulting criteria in the Federal Register no later than October 2012.  EPA has provided updates to NACWA every six months regarding progress under the settlement agreement and completed the required studies under the agreement by December 2010.  Recently, the Association formed a workgroup to evaluate EPA’s studies and the Agency’s ongoing work to use those studies as the foundation for new or revised recreational water quality criteria for coastal waters.  In May, NACWA forwarded a letter to EPA outlining a list of comments and concerns with EPA's recently completed epidemiologic and related studies and the potential revisions the Agency is considering to the existing recreational water quality criteria.  EPA held a stakeholder meeting on June 14 & 15 to further discuss these issues, which NACWA attended.   NACWA will continue to closely track EPA’s efforts as it works to meet its October 2012 deadline for publishing its final criteria recommendations.

No Ruling Yet in Anacostia River TMDL Case

NACWA continues to await a ruling on its Motion for Summary Judgment in Anacostia Riverkeeper v. EPA, a TMDL appeal pending in the U.S District Court for the District of Columbia.  After successfully litigating to force EPA to include daily loads in TMDLs in 2006, the plaintiffs in this case are now seeking to have daily loads be controlling even when the TMDL is directed towards achieving seasonal or annual loadings.  The TMDL at issue in the case primarily addresses sediment and total suspended solids that may be discharged over both the growing season and annually.  The plaintiffs allege that the daily loads are not stringent enough to achieve the applicable water quality standards of both Maryland and the District of Columbia.  NACWA’s motion, filed along with the Wet Weather Partnership and other municipal groups, takes the position that restrictive daily loads are not necessary to control pollutants that only need to be regulated on a seasonal or annual basis.  This case has potentially enormous national implications for municipal dischargers, since combined sewer overflows and municipal stormwater discharges could have a difficult time in meeting restrictive daily loads for most pollutants of concern.   The case has recently been assigned to a new judge, and NACWA is hopeful a ruling will be entered soon.

ISSUES OF INTEREST

Biosolids Land Application Case Moves to State Court, Utilities Win Key Victory

The ongoing legal challenge by NACWA member agencies the City of Los Angeles, Los Angeles County Sanitation District, and Orange County Sanitation District to a voter initiative banning the land application of biosolids in Kern County, CA has moved to California state court, and the municipal plaintiffs won an important victory June 9 when the court issued a preliminary injunction against the ban.  The litigation stems from a ban passed by Kern County in 2006 which would have prohibited the municipal plaintiffs from land applying their biosolids within the county.  The ban was extremely discriminatory in nature in that it only applied to biosolids generated outside the county but did not apply to biosolids generated within the county.   The municipal plaintiffs first challenged the ban in federal court, but that lawsuit was dismissed in late 2009 on an unrelated legal technicality.  The plaintiffs have now refiled the case in state court and scored a key legal win when the court agreed to a preliminary injunction of the land application ban.  The court also noted in its opinion that the plaintiffs were very likely to prevail on the merits.  NACWA filed an amicus brief in the federal case supporting its members in arguing against the ban, and stands ready to assist again in the state court case if necessary.

NACWA and Key Municipal Groups Challenge Legal Basis of Stormwater Memo

NACWA forwarded comments May 12 to EPA on the Agency’s November 2010 memorandum regarding numeric limits in stormwater permits, responding to EPA’s request for public comment and encouraging the Agency to withdraw the highly controversial document.  The NACWA letter, submitted jointly with the American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA), draws upon a previous letter sent to EPA by the three associations in January expressing significant legal and procedural concerns with the November memo. The joint municipal comments ask EPA to withdraw the document in its entirety or to reissue the memo with significant revisions after the completion of the current post-construction stormwater rulemaking process. As a result of pressure from NACWA and others, the Agency announced in March that it was opening up a formal comment period on the memo.  NACWA, APWA, and NAFSMA met with senior EPA staff in April to further discuss the municipal stormwater community’s concerns with the document.  EPA is expected to make a decision about the memo by August, and NACWA is optimistic that EPA will either withdraw the memo or reissue the document with significant revisions after reviewing input from the public comment process.