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The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Winter 2013 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.  

Legal Affairs Committee Holds Robust Discussion at 2013 Winter Conference, Will Next Meet at Upcoming Policy Forum

The Legal Affairs Committee met on Feb. 4 as part of NACWA’s 2013 Winter Conference and discussed a number of legal issues currently impacting clean water utilities.  Among the topics addressed was EPA’s recent denial of a petition to include nutrient removal as part of secondary treatment, an update on current litigation involving nutrients in both the Mississippi River Basin and New England, and a review of developments in litigation on TMDLs and trading issues in the Chesapeake Bay.  The committee also engaged in discussion about the possibility of a new enforcement approach as a result of EPA’s integrated planning framework and recent partnership agreements between EPA and clean water utilities, including implications for new and existing wet weather consent decrees.  Information from the meeting is available here.

The next meeting of the NACWA Legal Affairs Committee will occur on April 22, 2013 jointly with the Regulatory & Legislative Policy Committee as part of NACWA’s 2013 National Environmental Policy Forum in Washington, D.C.  Additional information on the Policy Forum, including registration and hotel details, is available on NACWA’s website.

Save the Date! 2013 Law Seminar to be Held November 20 – 22, 2013

Mark your calendars now for NACWA’s 2013 Developments in Clean Water Law Seminar, which will be held November 20 – 22 in San Antonio, Texas.  NACWA will begin developing an agenda for the Seminar in July, and registration information will be available in late Summer.  

CURRENT CASES

EPA Denies Secondary Treatment Petition; Related Lawsuit Dismissed

NACWA and the municipal clean water community won a major victory Dec. 14 when EPA issued a strong denial of the Natural Resources Defense Council’s (NRDC) 2007 petition seeking modification of secondary treatment regulations to include nutrient removal.  Consistent with NACWA’s recommendations and citing the technical constraints and costs associated with uniform national limits, EPA’s denial letter reaffirms the Agency’s preference for controlling nutrient discharges from publicly owned treatment works (POTWs) through the water quality-based provisions of the Clean Water Act (CWA).  The decision is a major win that will save public agencies tens of billions of dollars annually and ensures that an unworkable one-size-fits-all approach is not the solution to the nutrient challenge.  NACWA has led the advocacy efforts on this issue since 2007 and encouraged the Agency to take the exact steps laid out in the denial letter.  Advocacy Alert 12-14 provides a brief summary of the denial and its importance to clean water agencies.

In a related development, EPA and environmental activist groups on Jan. 15 jointly dismissed a lawsuit seeking an EPA response to the petition.  The lawsuit was filed by NRDC and other groups in March 2012.  The litigation was placed in abeyance in October 2012 when EPA agreed to respond to the petition by mid-December.  EPA’s answer to the petition fulfills the underlying request of the lawsuit and renders the litigation moot, leading to the dismissal.

While dismissal of the underlying lawsuit ends this chapter in the legal battle over secondary treatment, there is still the possibility that activist groups could file a future legal challenge to the substance of EPA’s petition denial.  NACWA will track developments closely and stands ready to aggressively respond to any subsequent litigation surrounding this issue.

NACWA Files Briefs in Mississippi River Nutrient Litigation

NACWA submitted two briefs on March 4 in ongoing litigation (Gulf Restoration Network, et al. v. EPA) over nutrient criteria in the Mississippi River Basin (MRB), supporting EPA’s denial of a request for federal numeric nutrient criteria (NNC) for the MRB.  NACWA argues in its filing that significant progress on nutrients can only be made through a holistic watershed approach addressing all sources of impairment.  

NACWA submitted its own, stand-alone brief  contending that federal NNC are insufficient to achieve the holistic watershed improvements needed for nutrient control in the MRB because they cannot meaningfully address the significant role of nonpoint sources in the nutrient pollution problem.  Additionally, NACWA participated in a joint brief  with a number of other groups to highlight the lead role states must take under the CWA in developing water quality standards and to argue that federal action on NNC would unlawfully displace state primacy on this critical issue.  

More information on the briefs and the litigation can be found in Advocacy Alert 13-05.  NACWA’s briefs respond to the plaintiffs’ request for summary judgment , challenging EPA’s denial in 2011 of a request to develop federal NNC for all waters in the MRB and the northern Gulf of Mexico.  EPA filed its brief on Jan. 18, forcefully defending the Agency’s denial of the request for federal NNC and total maximum daily loads (TMDLs).  NACWA successfully intervened in the ligation last year to help EPA defend its denial of the NNC request and ensure that the interests of the municipal clean water community are aggressively represented in the case.

Federal Court Strikes Down EPA “Flow TMDL” for Stormwater

A federal court in Virginia issued a strong decision  Jan. 3 finding that EPA’s attempt to regulate stormwater flow in a federal TMDL is illegal under the CWA, echoing arguments made by NACWA in the case and providing a significant legal victory for the municipal stormwater community.  The court’s ruling in Virginia DOT, et al. v. EPA found that stormwater flow on its own is not considered a “pollutant” under the CWA; therefore, EPA’s efforts to use it as a surrogate for pollutants, such as sediment, in establishing TMDLs is illegal.  The court expressly found the CWA language limiting EPA’s TMDL authority to actual pollutants is unambiguous, with the court stating that “EPA’s authority does not extend to establishing TMDLs for nonpollutants as surrogates for pollutants."  NACWA has been a leading advocate against the use of flow-based TMDLs, including submitting a brief in the litigation, and was very pleased with the court’s decision.

EPA further announced March 1 that it would not appeal the ruling, preserving this important legal win for municipal stormwater utilities.  Combined with the Agency’s decision to also withdraw a similarly contested flow-based stormwater TMDL in Missouri, these actions suggest EPA has backed off attempts to develop federal flow TMDLs for stormwater.  However, the Virginia legal decision does not directly impact the ability of individual states to use flow TMDLs, and it is likely this ongoing battle will simply shift to the state level where similar stormwater TMDLs may be developed under state authority.  NACWA will continue to track developments and maintain a strong advocacy on this issue moving forward.

NACWA Files Brief with Supreme Court in Nutrients Case

NACWA submitted a brief Feb. 1 with the U.S. Supreme Court encouraging review of a lower court ruling on controversial nutrient limits in a federally issued discharge permit.  NACWA’s brief in Upper Blackstone Water Pollution Abatement District (UBWPAD) v. EPA supports a request by Association member agency UBWPAD for review of a lower federal court decision approving EPA’s inclusion of inappropriate nitrogen and phosphorus limits in the utility’s permit.

The NACWA brief argues that allowing permit writers to derive numeric limits from narrative standards, without regard to relevant local water quality information, is inconsistent with EPA’s own regulations, and exposes public clean water utilities to the threat of spending limited public dollars on investments that are not necessary to address local water quality concerns.  The brief notes this is the first federal case to address the proper way to translate narrative nutrient criteria into numeric limits in permits, and that the lower court’s erroneous findings on this issue have national implications. Accordingly, the brief requests Supreme Court review the case and reiterate the importance of considering relevant local information when permitting decisions are made.

The litigation stems from a 2008 permit UBWPAD appealed over concerns with nutrient limits developed without regard to local water quality considerations. The utility was unsuccessful in an appeal before a federal appellate court in August 2012, and is now seeking Supreme Court review of the case. NACWA has previously filed two briefs at the appellate level in support of UBWPAD.

Oral Arguments in SSI Litigation Set for May 3

Oral arguments in NACWA’s legal challenge of EPA’s air emissions standards for sewage sludge incinerators (SSIs) have been set for Friday, May 3 (NACWA v. EPA; U.S. Court of Appeals for the District of Columbia Circuit). Briefing in the case was completed early this year and NACWA has been waiting for the court to set the date when the parties will present their cases to a three judge panel.  NACWA filed a reply brief Dec. 6 with the court, reiterating the Association’s legal and technical arguments against the rule and marking the final substantive brief to be filed in the case.  NACWA’s brief responds to arguments made by both EPA and the Sierra Club in filings they have previously submitted in support of the SSI rule.  

NACWA’s brief explains why the positions advocated by EPA and Sierra Club are wrong, while at the same time bolstering arguments made by NACWA in its opening brief  that the rule suffers from fatal legal and technical flaws.  In particular, NACWA emphasizes the final SSI rule exceeds EPA’s statutory authority under both the Clean Air Act and CWA.  NACWA also highlights the statistical and technical errors made by EPA in setting the rule’s emissions limits.  As a result of these problems, NACWA argues the court must vacate the rule in its entirety, thus forcing EPA to develop more appropriate and cost-effective SSI standards.

NACWA initiated the litigation to challenge the SSI rule as the lead plaintiff in 2011, and is hopeful the court will issue a ruling by early Summer 2013.

Court Grants NACWA Intervention in Water Quality Trading Case

A federal court Feb. 1 granted  NACWA’s request to intervene as of right in litigation challenging the validity of water quality trading programs under the CWA, clearing the way for the Association to aggressively represent municipal clean water utilities in the case and defend trading programs. The court order in Food and Water Watch, et al. v. EPA found that NACWA and its municipal partners have a clear legal interest in the litigation, noting that the “threatened loss of economic benefit of…trading constitutes a concrete and imminent injury” which warrants intervention. As a result of this ruling, NACWA will be able to participate as a party in the case and help EPA defend water quality trading programs.

The lawsuit was filed by a coalition of environmental activist groups challenging  the trading approach created by EPA in the final Chesapeake Bay TMDL.  This case has the potential to impact trading programs involving wastewater and stormwater sources, and has implications not just for the Chesapeake Bay region but for all water quality trading efforts nationally.  NACWA moved to intervene  in the case in Dec. 2012 to push back against the plaintiffs’ misguided attacks on water quality trading and help defend trading programs nationwide.  The plaintiffs recently filed an amended complaint , with answers due from EPA and the intervenors in mid-April.  NACWA looks forward to working with EPA in responding to the amended filing.   

NACWA was joined in intervention by a broad coalition of municipal and trading interests including the Virginia Association of Municipal Wastewater Agencies (VAMWA), the Maryland Association of Municipal Wastewater Agencies (MAMWA), the North Carolina Water Quality Association, the Virginia Nutrient Credit Exchange Association, and the Wet Weather Partnership.

U.S. Supreme Court Decision Limits Definition of “Discharge” Under Clean Water Act

The U.S. Supreme Court released its ruling  Jan. 8 in Los Angeles County Flood Control District v. Natural Resources Defense Council, with the High Court confirming that water flowing from one portion of a waterway through an artificial channel into another portion of the same waterway does not qualify as a “discharge” under the CWA.  Accordingly, these types of flows from an improved portion of a waterway to an unimproved portion do not require a National Pollutant Discharge Elimination System (NPDES) permit.  In making this decision, the Court also reaffirmed its 2004 ruling in South Florida Water Management District v. Miccosukee Tribe of Indians that the transfer of already polluted water between two parts of the same water body does not create a discharge under the CWA or require an NPDES permit.

The decision is consistent with NACWA’s long-standing position on the water transfers issue and with arguments from a brief  submitted in the case by NACWA, New York City, and a number of other water associations which encouraged the Court to uphold its previous 2004 position.  NACWA is pleased with the Court’s decision and believes it is an important legal victory for the clean water community.

Disappointing Decision Issued in Federal Stormwater Fee Case

The U.S Court of Federal Claims released an unfortunate legal decision Jan. 28 in a case involving the payment, by federal government facilities, of municipal stormwater fees.  The court found that stormwater charges billed to federal facilities by NACWA Member Agency DeKalb County, Georgia are a local tax and not a utility fee under federal law.  The court also found that a 2011 amendment to the CWA, which clarified federal responsibility for municipal stormwater charges, does not apply to charges that qualify as taxes and were billed prior to the amendment's enactment.  Accordingly, the court ruled the County cannot collect pre-2011 unpaid amounts.

The court did note, however, that the language of the 2011 amendment clearly establishes federal responsibility for payment of stormwater charges going forward regardless of whether they are deemed fees or taxes.  Accordingly, this decision should not impair the ability of stormwater utilities to collect charges from federal facilities that were billed after the January 2011 enactment of the CWA amendment.

The decision's finding on the CWA amendment's applicability to pre-2011 amounts is directly at odds with a ruling last year from a federal district court in Washington State, which ruled the amendment does apply to pre-2011 amounts.  Given that two separate federal courts have reached different conclusions on the amendment's pre-2011 applicability, utilities seeking to recover pre-2011 amounts will need to carefully review their legal options.

NACWA participated in the DeKalb County case with a brief in support of the County, and is disappointed with the court's decision.  The Association strongly disagrees with the court's conclusions regarding the tax vs. fee analysis, as well as its finding on the pre-2011 applicability of the CWA stormwater fee amendment. NACWA will continue to track developments in the case, including any possible appeal, and stands ready to continue aggressive legal advocacy on this issue.

California Court Upholds Injunction on Biosolids Land Application Ban

A California appellate court issued a comprehensive legal decision Feb. 13 in support of biosolids land application, upholding an injunction against a discriminatory local land application ban and echoing arguments made by NACWA in the litigation.  The ruling in City of Los Angeles, et al. v. County of Kern affirms a June 2011 decision by a lower state court to prevent Kern County from implementing a 2006 land application ban while NACWA member the City of Los Angeles and other Southern California clean water utilities pursue a legal challenge.  

The ruling marks an important win for the municipal plaintiffs in the case, as well as for the clean water community nationally, in defending biosolids land application.  Litigation over the Kern County ban dates back to 2006 and has resulted in strong, pro-land application legal decisions in both federal and state court.  NACWA has been an active participant in the case on behalf of the municipal plaintiffs, including filing a brief  in support of the current injunction, and is pleased the decision reflects many of the arguments put forth by the Association.  Additionally, NACWA filed a letter with the court requesting the decision be published to increase the value it may provide to utilities across the country fighting similar land application bans.  Other members of the clean water community including the Water Environment Federation (WEF) have also played an important role supporting land application in this litigation.

NACWA Files Briefs at State Level Supporting Municipal Stormwater Fee Programs

NACWA filed a brief Dec. 19 with the Missouri Supreme Court supporting public agency member the Metropolitan St. Louis Sewer District (MSD) in a legal challenge to the utility’s municipal stormwater fee program.  The brief argues that stormwater use fees calculated based on impervious surface - such as those used by MSD and being challenged in the litigation - properly qualify as valid service charges and not taxes.  The brief also argues determining stormwater fees based on impervious surface area is becoming the industry norm because it is the most equitable way to bill for the increase in stormwater runoff as a result of urban development.  The brief provides a national perspective on this issue, explaining why impervious surface stormwater fees should not be considered taxes, and highlights a number of state courts around the country that have already examined and upheld similar types of stormwater fee programs as valid service charges.

NACWA has previously supported MSD in this litigation, including a similar brief filed last year with a lower state appellate court.  The lower court ruled earlier this year against the fee program, finding it to be an illegal tax.  MSD then appealed to the state Supreme Court, with NACWA assistance, and the Supreme Court agreed to review the case.  The litigation stems from a challenge filed to the fee program by some MSD ratepayers.

NACWA Also Supports Ohio Utility
In a related development, NACWA also submitted a brief Feb. 4 with an Ohio state appellate court supporting Association member, the Northeast Ohio Regional Sewer District (NEORSD), in defending a municipal stormwater fee program from legal challenge.  The brief makes arguments similar to those in the MSD litigation, including that municipal stormwater service charges qualify as valid utility fees and are not impermissible taxes.  The brief highlights a number of state and federal court decisions upholding stormwater charges as fees and not taxes, and argues that a recent amendment to the federal CWA – which was strongly supported by NACWA – further clarifies stormwater fees based on impervious surface are appropriate utility charges.

NEORSD was successful in defending its stormwater fee program from legal challenge at the state trial court level, and now seeks to uphold that victory on appeal.  NACWA was joined by a number of other groups on the brief including the National Association of Flood & Stormwater Management Agencies (NAFSMA), the American Public Works Association (APWA), American Rivers, and the Association of Ohio Municipal Wastewater Agencies (AOMWA).

NACWA Awaits Decision in Chesapeake Bay TMDL Litigation

NACWA continued to wait for a decision in federal litigation over EPA’s final TMDL for the Chesapeake Bay.  Oral arguments were held in early October 2012 in American Farm Bureau, et al. v. EPA, which is a challenge by agricultural interests to EPA’s inclusion of nonpoint sources as part of the final Bay TMDL.  NACWA, the Maryland Association of Municipal Wastewater Agencies (MAMWA), and the Virginia Association of Municipal Wastewater Agencies (VAMWA) jointly intervened in the litigation last year to represent the municipal clean water community and were active participants during the oral arguments.  NACWA and its municipal partners filed an opening brief and reply brief in the case, reiterating the Association’s support for inclusion of all sources of water quality impairment in the final TMDL allocations.  The briefs argue that the holistic, watershed approach embodied in the final TMDL, including allocation for nonpoint agricultural sources, provides the greatest potential for equitably, cost-effectively, and successfully restoring the tens of thousands of water bodies nationwide that are impacted by excessive pollutant loads.  A decision from the court is expected at any time.

ISSUES OF INTEREST

NACWA Submits Comments on EPA Enforcement Priorities

NACWA submitted a Feb. 27 comment letter on EPA’s proposed national enforcement and compliance priorities for fiscal years (FY) 2014-2016, encouraging the Agency to work with clean water utilities on an integrated planning approach to address wet weather concerns – instead of pursuing federal wet weather enforcement actions as its top priority.

The letter expresses concern that EPA has again listed municipal wet weather infrastructure as the lead priority for the FY 2014-2016 enforcement cycle, as it has been the past several cycles.  NACWA argues in its comments that the growing affordability challenges created by the recent downturn, and the continued failure to address water quality impairment from nonpoint sources, makes continuing to focus on municipal enforcement actions both economically and environmentally unsustainable.  The letter also states that the only way to make meaningful progress toward solving water quality concerns is through a holistic watershed approach, with the integrated planning effort being a key step in this direction.

Accordingly, NACWA encourages EPA to reconsider making municipal wet weather issues its top enforcement priority, and instead urges the Agency to spend that time working directly with clean water utilities to help them effectively implement integrated plans.  The letter suggests that by refocusing its efforts on integrated planning and maximizing compliance assurance efforts – as opposed to enforcement – EPA can avoid lengthy and often contentious negotiations over program requirements and instead facilitate ensuring that the best investments are being made now to improve water quality.

NACWA/WEF/WERF Release Water Resources Utility of the Future. . . Blueprint for Action

NACWA, the Water Environment Research Foundation (WERF), and the Water Environment Federation (WEF) jointly released a pioneering document that defines the evolving environmental, economic, and social roles that clean water utilities are playing in their communities.  As outlined in Water Resources Utility of the Future . . . Blueprint for Action , this new water resources utility of the future (UOTF) will transform the way traditional wastewater utilities view themselves and manage their operations.  The document explores how traditional publicly owned treatment works have mastered their core wastewater treatment function and are now redefining themselves as resource recovery agencies and vital community enterprises.

The Blueprint opens the door to re-imagining the Clean Water Act in the wake of unprecedented progress and evolution over the 40 years since the Act’s passage.  The audience for this Blueprint, however, is broader than just federal policymakers and includes local utility managers, private sector interests, state and local governments, technology providers, and many others within the clean water, drinking water, energy and agricultural communities.  NACWA, WERF and WEF are working to ensure the document is broadly distributed.

NACWA Wet Weather Task Force Proposes Wet Weather Legislation

NACWA’s Wet Weather Task Force recently completed work on a legislative proposal to help communities better manage peak wet weather flows at POTWs and collection systems.  The Wet Weather Community Sustainability Act would amend the CWA to authorize use of peak excess flow treatment technologies and management approaches, such as ballasted flocculation, blending, and peak excess flow treatment facilities.  It would also require EPA to issue guidance to states on how to develop wet weather water quality standards.  For more information and a summary of the proposal, see Advocacy Alert 13-02.