» Clean Water Current Archive

June 1, 2012

Court Embraces NACWA Position, Issues Major Victory on Stormwater Fees

NACWA helped secure a significant legal victory May 25 when a federal court ruled  that federal government facilities are responsible for payment of municipal stormwater fees, including fees billed prior to the January 2011 enactment of a Clean Water Act (CWA) stormwater amendment advocated by the Association.  The decision in United States v. Cities of Renton and Vancouver is a substantial win for NACWA and its municipal stormwater utility members, clarifying in unambiguous legal terms the federal responsibility for stormwater fee payment and clearing the way for utilities nationwide to collect millions of dollars in unpaid fees from federal facilities.  The court cited heavily from a supporting NACWA brief  in finding that the CWA stormwater amendment is a clarification of a pre-existing waiver of federal sovereign immunity for stormwater fees, requiring federal payment for pre-2011 unpaid amounts.   NACWA played a vital role in ensuring passage of the 2011 amendment, and sought to vigorously defend it in this litigation.  More information on this decision is available in Advocacy Alert 12-09. 

NACWA Supports Appeal in St. Louis Stormwater Fee Case
In a related development, NACWA filed a motion June 1 with the Missouri Supreme Court in support of an appeal by member agency the Metropolitan St. Louis Sewer District (MSD) in litigation involving their municipal stormwater fee program.  NACWA’s motion encouraged the state supreme court to review a lower appellate court decision invalidating MSD’s stormwater program.  The lower court struck down MSD’s use of an impervious surface-based approach for stormwater billing, and also found that the fee qualified as a tax rather than a service charge.  The case has national implications because of its attack on the use of impervious surface as a basis for assessing stormwater fees.  NACWA filed a brief  before the lower appellate court supporting the MSD program and arguing that the use of impervious surface for stormwater billing purposes has become the accepted industry standard.  A copy of the NACWA motion filed this week will be available soon on the Association’s Litigation Tracking website.

NACWA Granted Intervention in Nutrient Lawsuit

NACWA was granted  intervention May 25 in a lawsuit seeking the imposition of federal numeric nutrient criteria (NNC) and total maximum daily loads (TMDLs) for all waters in the Mississippi River Basin (MRB), clearing the way for the Association to defend the interests of the municipal clean water community in this case with national implications.  The litigation, Gulf Restoration Network v. EPA, was filed in March by a group of environmental activist organizations challenging EPA’s denial of a 2008 petition  seeking federal nutrient controls for all waterways nationwide that do not yet have them, especially those in the MRB.  NACWA filed a Motion to Intervene  on May 23, defending EPA’s denial of the petition and arguing that creation of federal NNC and TMDLs would place an inequitable regulatory and financial burden on the municipal point source community.  Additional information on the litigation and NACWA’s role is available in Advocacy Alert 12-08.

Nutrient Web Seminars to Highlight Recent Litigation, National Policy Developments

Nutrient policy issues remain front and center for the Nation’s clean water utilities and two new lawsuits are signaling an aggressive push to further ratchet down on point sources.  NACWA has developed a series of two one-hour web seminars that will explore both technology-based and water quality based approaches to nutrient control, two new lawsuits brought by activist NGO groups that are designed to put pressure on EPA on both of these fronts, and the continued efforts to seek meaningful participation from the largest source of nutrients in most watersheds – agriculture.

Seminars to Explore Technology and Water Quality Based Approaches to Nutrients
The first seminar, Nutrients – Are Technology Controls the Solution?, is scheduled for Wednesday, June 20 at 2:00 pm Eastern and will explore the continued focus on technology-based approaches to nutrient control by the environmental NGO community and some states.  Jon Devine from the Natural Resources Defense Council (NRDC) will outline why the NGO community believes a national, technology-based approach should be put in place.  NACWA representatives will explain the Association’s rationale for opposing such a one-size-fits-all approach and provide an update on the Association’s plans to intervene in NRDC’s related lawsuit.  Mike Tate, Water Bureau Chief for the Kansas Department of Health and Environment, will discuss Kansas’ technology-driven program for controlling nutrients and the role the broader state community feels technology-based controls may play.

On Wednesday, June 27 at 2:00 pm Eastern, speakers at the second seminar – Nutrients – Give Water Quality a Chance – will examine the Clean Water Act requirement that where technology-based controls are not sufficient to meet water quality standards, water quality-based controls will be imposed.  Ellen Gilinsky, Senior Policy Advisor for EPA’s Office of Water, will provide an update on the latest perspectives from EPA and the progress that has been seen throughout the U.S.  Recent litigation to compel EPA to develop numeric nutrient criteria and total maximum daily loads for the Mississippi River Basin and Gulf of Mexico has again underscored the imbalance in the Clean Water Act. While 80-90 percent of the nutrient load to the Mississippi and Gulf are from nonpoint sources like agriculture, the only definitive result from the development of federal numeric criteria and total maximum daily loads (TMDLs) would be more onerous requirements for clean water utilities.  Richard Budell with the Florida Department of Agriculture & Consumer Services will discuss efforts at the state level to secure more meaningful and equitable reductions of nutrient loads from nonpoint sources like agriculture.

Registration for the two-seminar series is $250.  These web seminars offer an exceptional opportunity to gather your staff in a group learning environment to access exceptional, high-value information on the critical issue of nutrients.  Don’t delay, register today!

NACWA Files Second Legal Challenge on SSI Issue

NACWA filed a formal legal challenge  this week to EPA’s denial of the Association’s administrative petition for reconsideration of the sewage sludge incinerator (SSI) rule.  The action clears the last procedural hurdle to begin briefing on Association’s underlying lawsuit against the final SSI regulations.  After filing the challenge, NACWA immediately moved to consolidate  the case with the existing lawsuit filed last year over the SSI rule.  The two challenges will now move forward as one case.  NACWA also agreed with the other parties in the case on a briefing schedule for the lawsuit going forward, with opening briefs due in mid-July.  The entire briefing process should be wrapped up by mid-December of this year, allowing for the court to issue a final decision in the case sometime in early 2013.  Additional information on NACWA’s SSI litigation efforts is available on the Litigation Tracking page.

NACWA Establishes Wet Weather Task Force to Develop Legislation, Seeks Agency Participation

NACWA President, David R. Williams, Director of Wastewater at the East Bay Municipal Utility District in California, has created a task force to develop a legislative package of reforms to the Clean Water Act to address critical wet weather-related issues.  The legislative package will be developed to present to Congress next year.  The Task Force will be chaired by John O’Neil, General Manager of Johnson County Wastewater in Kansas and member of NACWA’s Board of Directors.  Ben Horenstein, Manager of Wastewater Environmental Services at East Bay Municipal Utility District and Lisa Hollander, General Counsel of Sanitation District 1 in Kentucky, will jointly serve as Vice Chairs.  The first meeting of the task force will likely be at the end of June and initial discussion will center on determining the scope and focus of the legislation.  Public Member Agencies interested in joining the Task Force should contact Patricia Sinicropi, NACWA’s Legislative Director at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

NACWA Presents Baltimore Mayor with Achievement Award

NACWA, this week, presented Baltimore Mayor Stephanie Rawlings-Blake with the 2012 National Environmental Achievement Special Recognition Award for her leadership and advocacy to improve access to clean water.  NACWA Executive Director, Ken Kirk, presented the Mayor with the award at City Hall at an event also attended by Department of Public Works Director Alfred Foxx, the head of the Bureau of Water & Wastewater Rudy Chow, and a host of city employees.

“I am honored to accept this on behalf of Director Foxx, and the men and women in the Department of Public Works who operate and maintain our water utility,” said Mayor Rawlings-Blake. “…Our administration is more determined than ever to make sure we remain in the top tier of great water systems.”

NACWA recognized both Mayor Stephanie Rawlings-Blake and Mayor Jennifer Hosterman of Pleasanton, Calif., for their work as co-Chairs of the U.S. Conference of Mayors’ Water Council, a group dedicated to assisting local governments in providing high quality water resources in a cost effective manner.  With this award NACWA celebrates leadership of the Council for its advocacy on increased flexibility for combined sewer overflow controls, and their efforts to ensure a more viable approach to Clean Water Act affordability determinations.