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The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Spring 2012 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.  Copies of relevant court filings and documents, along with additional information on NACWA’s ongoing litigation, can be found on the Association’s Litigation Tracking web page.

NACWA Legal Affairs Committee Convenes at Policy Forum, Will Meet Again at July Summer Conference in Philadelphia

The Legal Affairs Committee met jointly with the Regulatory Policy and Legislative Policy Committees on April 23 as part of the Association’s 2012 National Environmental Policy Forum in Washington, DC.  Committee members were briefed on two cross-cutting issues at the top of NACWA’s advocacy agenda – nutrients and integrated planning.  Nutrient pollution remains a top priority for the Association and committee members discussed the latest developments relating to NACWA’s efforts on the litigation front to address the issue, as well as the Association’s work to influence Farm Bill discussions on Capitol Hill in order to better address nutrient pollution from agriculture.  Also discussed was EPA’s integrated planning framework, which has become a focus for the Agency’s water office, and committee members were updated on the latest developments and EPA’s planned next steps.  Several communities that are considering or already implementing integrated planning provided overviews of their ongoing efforts, and the Association of Clean Water Administrators (ACWA) provided a brief update from the state perspective.   Handouts from the Committee meeting at the Policy Forum are available here.

The next Legal Affairs Committee meeting will be held on July 16 during NACWA’s Summer Conference and 42nd Annual Meeting, Transformational Leadership…Changing the Game for the Next 40 Years of Clean Water, in Philadelphia, Pa.  Among the topics to be discussed at the meeting will be NACWA’s engagement in a number of crucial nutrient lawsuits and recent developments involving consent decree modifications and reopeners.  More information on the Summer Conference is available on NACWA’s website – we hope you will be able to join us!

Save the Date for NACWA’s 2012 Law Seminar in Seattle, WA

Mark your calendars now for the 2012 Developments in Clean Water Law Seminar, which will be held November 14-16, 2012 at the Westin Seattle in Seattle, Washington.  A planning committee for the Seminar will be formed in July.  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 Granted Intervention in Numeric Nutrient Criteria Lawsuit, Continues Discussions in Secondary Treatment Case

NACWA was granted  intervention May 25 in recent litigation seeking the imposition of federal numeric nutrient criteria (NNC) for all waterbodies in the Mississippi River Basin (MRB) and Northern Gulf of Mexico, ensuring that the interests of the municipal clean water utility community will be aggressively represented in this critical case.   NACWA’s Motion to Intervene  in Gulf Restoration Network, et al. v. U.S. Environmental Protection Agency (EPA), filed with U.S. District Court for the Eastern District of Louisiana on May 23, requested participation as a defendant in the case to support EPA’s denial  of a 2008 petition  from activist groups seeking the establishment of federal NNC and nutrient total maximum daily loads (TMDLs) for all waters nationwide where such criteria have not been developed but, at a minimum, to establish such criteria and TMDLs for all waters in the MRB.

NACWA’s request for intervention argued that EPA’s denial of the 2008 petition was proper, and that the necessary legal basis for the imposition of federal NNC for waters in the MRB does not exist.  The motion also contended that the technical and scientific basis for imposition of numeric criteria as requested by the plaintiffs is inappropriate, as it would likely end up placing a disproportionate share of the regulatory and financial burden on point source discharges – such as municipal wastewater and stormwater utilities – without addressing non-point sources.  Additional information on NACWA’s involvement in this case is available in Advocacy Alert 12-08.

In a related development, NACWA is continuing discussions with EPA in a companion lawsuit, Natural Resources Defense Council v. EPA, filed by a similar group of environmental plaintiffs seeking to include nutrient removal as part of the national secondary treatment requirements for all wastewater treatment plants.  Specifically, the lawsuit alleges that EPA’s failure to respond to a 2007 petition on secondary treatment constitutes an unreasonable delay, and seeks court action to force EPA to provide a petition response within 90 days.  Discussions between NACWA and EPA are progressing in a positive direction, and NACWA anticipates filing for intervention in the coming weeks.

Court Issues Significant Legal Victory on Stormwater Fees

NACWA and its municipal clean water utility members won a major legal victory May 25 when a federal court in Seattle ruled  that federal government facilities are responsible for payment of municipal stormwater fees, including fees billed prior to January 2011.  The decision in United States v. Cities of Renton and Vancouver embraces arguments made by NACWA in a supporting brief  filed in February that a 2011 amendment to the Clean Water Act (CWA) clarifying federal responsibility for municipal stormwater charges also applies to fees billed prior to the amendment’s enactment.  The court cited heavily from the NACWA brief in finding that the amendment is a clarification of a pre-existing waiver of federal sovereign immunity for stormwater fees, requiring federal payment for pre-2011 unpaid amounts.

This decision is significant win for NACWA and its municipal stormwater utility members, clarifying in unambiguous legal terms the federal responsibility for stormwater fee payment.  NACWA played a critical role two years ago in securing Congressional passage of the stormwater fee amendment, and this court decision marks a continuation of the Association’s advocacy to ensure municipal stormwater utilities receive payment from federal government facilities.  Additional information on this decision is available in Advocacy Alert 12-09.

In a related development, NACWA also filed a brief  May 7 in litigation before the federal Court of Claims, supporting efforts by Association member DeKalb County, Georgia to recover unpaid, past-due municipal stormwater charges from a number of federal government facilities.  The NACWA brief in DeKalb County v. United States reiterates the Association’s long-standing position that federal agencies are responsible for payment of local stormwater fees, and that the 2011 CWA amendment applies to past due amounts.  The NACWA brief also highlights the significant financial challenges that DeKalb County will face if the federal facilities do not pay these fees, as well as the dangerous precedent this would set for other municipal stormwater utilities across the country.  The May 25 ruling on similar issues in the Washington State case will be very helpful in the Georgia litigation, and hopefully will lead to an equally positive resolution.

EPA Biogenic Emissions Deferral Under Attack, NACWA Weighs In

NACWA filed an amicus curiae brief  May 21 in the case of Center for Biological Diversity (CBD) v. EPA, currently before the U.S. Court of Appeals for the District of Columbia Circuit.  In its brief, the Association supports EPA’s three-year deferral  of biogenic carbon dioxide (CO2) emissions from Clean Air Act (CAA) Title V and Prevention of Significant Deterioration (PSD) permitting requirements.  The deferral specifically applies to emissions from the wastewater treatment process and the combustion of biogas and biosolids – as well as to combustion of other biomass, such as agricultural and forest products.  NACWA’s brief explains why biogenic emissions from publicly owned treatment works (POTWs) are different in nature from other biogenic emissions due to the short carbon cycle associated with human waste and the unavoidable nature of the emissions, which would occur regardless of POTW processing.  The Association also explained the burden that would be placed on POTWs if the deferral was vacated and utilities were forced to comply with Title V and PSD permitting, monitoring, and reporting requirements.  Additional background information on this lawsuit is available in Advocacy Alert 12-07.

NACWA Helps Secure U.S. Supreme Court Victory in Sackett CWA Case

The U.S. Supreme Court ruled on March 21 that EPA-issued administrative orders (AOs) requiring compliance with the CWA are entitled to pre-enforcement judicial review, notching an important legal victory for NACWA and the municipal clean water community.  The High Court’s unanimous decision  in Sackett v. EPA mirrors 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.  Additional information on the decision is available in Advocacy Alert 12-05.

In finding that CWA AOs are entitled to pre-enforcement judicial review, the Court noted that “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review.”  The decision is important because it will allow utilities that receive AOs, and have concerns about the underlying validity of the order, to now move for immediate 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 clean water agencies.

EPA Issues Formal Denial of SSI Rule Reconsideration, NACWA Legal Challenge Moves Forward

On April 6, EPA issued its formal written denial of NACWA’s request for administrative reconsideration of the Agency’s sewage sludge incinerator (SSI) rule, paving the way for the Association to ramp up its legal challenge to the regulation.  The denial notice  outlines EPA’s reasons for rejecting NACWA’s request and focuses primarily on procedural as opposed to substantive issues.  EPA did not raise any particularly new or novel arguments in the denial.  The Agency also issued a denial letter on the same day to the Sierra Club, which had petitioned for reconsideration of the rule as well.  EPA then published the formal denial notices in the Federal Register  on April 27.  NACWA is now moving to challenge EPA’s petition denial, and to consolidate that challenge with the Association’s underlying case against the final SSI rule.  NACWA is also working to establish a briefing schedule with the other parties in the litigation to move forward with the combined lawsuits, and anticipates opening briefing to occur in mid-July.

Brief in Chesapeake Bay TMDL Case Highlights Need for Watershed Approach

NACWA filed a brief  April 20 in litigation over the final TMDL for the Chesapeake Bay, defending the use of a holistic watershed approach and the inclusion of nonpoint source agricultural dischargers in the TMDL to address the Bay’s water quality impairment issues.  The municipal brief, filed jointly by NACWA along with the Virginia Association of Municipal Wastewater Agencies (VAMWA) and the Maryland Association of Municipal Wastewater Agencies (MAMWA), argues that the watershed approach embodied in the TMDL program is both lawful and necessary to restore water quality.  It contends that EPA’s inclusion of both nonpoint sources discharges and upstream discharges was legal and appropriate.  The brief highlights the significant investments and achievements municipal clean water utilities have made to improve water quality in the Chesapeake Bay, particularly with regard to nutrient impairments.  It further argues that additional restrictions on point source dischargers without addressing the significant nonpoint contributions would be inequitable.

The litigation, American Farm Bureau Federation, et al. v EPA, stems from an attempt by the American Farm Bureau, and a host of other agriculture groups, to challenge the final TMDL and limit EPA’s ability to include nonpoint agricultural dischargers as part of the TMDL allocations.  NACWA and its municipal partners moved to intervene in the litigation last year to protect the interests of its municipal clean water agency members and defend EPA’s ability to address all sources of water quality impairment.  While the specific facts of the case deal with the Chesapeake Bay watershed, the issue of defending a comprehensive watershed approach is one that has national implications.

Association to Support St. Louis in Continued Stormwater Fee Appeal

The Missouri Court of Appeals issued an unfortunate ruling  March 27 in Zweig v. Metropolitan St. Louis Sewer District (MSD), upholding a lower trial court decision that the utility’s stormwater charge qualifies as a tax and not a service charge.  MSD in planning to appeal this ruling to the Missouri Supreme Court, and NACWA will be filing a statement in support of the utility’s motion to provide a national perspective on this important issue and encourage the court to review the case.

The appellate court reached its decision after analyzing the MSD stormwater rate structure, which is based on impervious surface, against a number of elements of Missouri state law.  Among the more concerning aspects of this ruling was the appellate court’s decision to uphold the lower court factual finding that there is no direct relationship between impervious area and stormwater runoff.  NACWA strongly disagrees with this finding, and had urged the court to overturn the lower court decision in a brief  filed last September in support MSD.

The court’s ruling was not unanimous but was by a vote of 2-1, and the dissenting judge wrote a strong opinion citing to the NACWA brief in support of the MSD program and the use of impervious surface to charge for stormwater services.   The dissent noted that not only are stormwater fees based on impervious surface the industry norm, but that “the engineering literature has validated the equity of this methodology for stormwater management user fees.”

Potential Resolution Reached in Akron Consent Decree Dispute

A potential resolution to the Akron consent decree impasse has been reached, which could pave the way for the city to withdraw its planned appeal.  The city and EPA recently reached an agreement on a Long Term Control Plan (LTCP), which had been one of the major stumbling blocks in getting judicial approval of the original decree.  Based on this new development, EPA is now asking the district court judge for an indicative ruling as to whether he will approve the proposed decree now that the LTCP is finalized.   If the judge approves the decree, Akron will likely drop its pending appeal of the district court’s earlier denial to enter the agreement.

The case stems from a March 2010 decision by the district court to reject the decree even though it had been agreed to and was supported by the City, the federal government, and the state government.  Akron filed an appeal of the district court’s decision not to enter the decree with the U.S. Court of Appeal for the Sixth Circuit.  NACWA was poised to file an amicus brief in support of the city’s appeal, highlight the importance of judges granting deference to the consent decree negotiation process and discussing from a national perspective how disruptive it would be to the consent decree negotiation process if cities cannot rely on the federal courts to approve agreements they reach with federal and state regulators.

ISSUES OF INTEREST

Release of Final EPA Integrated Planning Document Imminent

EPA is expected to release its final integrated planning framework document within a matter of days, proving additional guidance on how communities can better prioritize their investments related to CWA obligations.  The Agency released a draft version  of the framework in January for public review and comment.  NACWA submitted comments  on the framework in late February, commending EPA on recognizing the need for more flexibility regarding CWA mandates, but expressing concern that the framework might not be flexible enough.  NACWA’s comments also noted that the framework is focused primarily on the sequencing of investments to meet current Agency policy regarding combined sewer overflow (CSO), sanitary sewer overflow (SSO), and stormwater compliance, and does not contemplate a true cost-benefit approach to determining where resources are best spent to achieve improved water quality.  The Association stressed that broader change will be needed to establish a truly holistic, watershed-based approach.

NACWA Meets with OMB on CWA Jurisdiction Guidance

NACWA met with officials from the White House Office of Management & Budget (OMB) on March 2 to discuss the Association’s position on EPA’s proposed CWA jurisdiction guidance.  The final guidance document was sent to OMB in February.  During the meeting, NACWA presented OMB with a copy of its 2011 comments  on the draft guidance.  NACWA expressed its broad support for efforts to clarify CWA jurisdiction, but recommended a formal rulemaking process.  NACWA also voiced its endorsement of increased water quality protection through a holistic watershed approach, as outlined in the guidance.

NACWA emphasized that any final guidance document must – as the draft guidance did – preserve the existing regulatory exemption for waste treatment systems.  Additionally, the Association called for the final guidance to address a number of other items, including:

• the inclusion of an explicit exemption for municipal stormwater collection systems;
• the inclusion of an explicit exemption for groundwater from CWA coverage; and
• clarification for western utilities about potential impacts on ditches and water reuse projects.

OMB continues its review of the guidance and – given the significant political opposition that has been mounted to document – it is not clear at this point whether the final guidance will be approved for release.