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The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Winter 2013/2014 Legal Update. This Update provides summaries of current legal initiatives and discusses developments in NACWA’s litigation matters. Additional information on cases discussed in this Update, including copies of relevant court filings and documents, can be found on the Association’s Litigation Tracking web page. Any questions regarding this Update or NACWA’s legal advocacy efforts can be directed to Nathan Gardner Andrews at 202/833-3692 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it , or to Amanda Waters at 202/530-2758 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Law Seminar Addresses Opportunities and Challenges Facing Clean Water Agencies

Over 100 clean water attorneys, professionals, and utility managers from around the country gathered in San Antonio November 20-22 to discuss critical legal and regulatory challenges facing the clean water community as part of NACWA’s 2013 National Clean Water Law Seminar. The three-day program, which received very positive reviews from participants, featured top legal experts from around the country covering a wide range of key issues impacting municipal wastewater and stormwater utilities.

While the Law Seminar highlighted ever growing and expanding challenges, there was also discussion of opportunities for progress due in large part to overtures of increased flexibility, partnership and cooperation expressed by U.S. Environmental Protection Agency (EPA) Headquarters. Nancy Stoner, Acting Assistant Administrator, EPA Office of Water, presented on the Agency’s priorities for the upcoming year and discussed challenges related to population growth, development, affordability, climate change, emerging contaminants, emerging industries, aging infrastructure and aging statutes.

Stoner said it was difficult to envision relief in the form of an updated Clean Water Act (CWA) anytime soon; as a result EPA must work with stakeholders like NACWA to make the existing statute work more effectively. Priorities outlined by Stoner included clarifying CWA jurisdiction, providing greater flexibility to communities facing economic challenges via a soon to be released affordability framework, and fostering integrated planning, innovation and green infrastructure. She thanked NACWA for its strong partnership and collaboration on these issues and commended the Association, and its partners the Water Environment Research Foundation (WERF) and the Water Environment Federation (WEF), on the Water Resources Utility of the Future (UOTF) initiative.

Other topics discussed at the Seminar included integrated planning, stormwater regulation, consent decree developments, successful legal advocacy approaches with EPA, and current wet weather enforcement and permitting issues. Presentations and handouts from the Seminar are available on the NACWA’s website.

NACWA Legal Affairs Committee Will Meet at Winter Conference

There will be a joint meeting of the Legislative & Regulatory Policy Committee and the Legal Affairs Committee on February 4 as part of the Association’s 2014 Winter Conference, Compliance, Collaboration & Cost . . . Critical Drivers for Clean Water, being held February 2-5 in Santa Fe, New Mexico. The meeting will provide a valuable opportunity to examine a number of timely, cross-cutting advocacy issues involving all three of NACWA’s advocacy programs. Central to this discussion will be a look at recent developments around EPA’s integrated planning initiative and related efforts to address affordability concerns. NACWA has been involved in significant work at EPA and on Capitol Hill to advance integrated planning concepts and promote meaningful progress on affordability considerations. At the same time, these topics are also having noticeable impacts in the legal arena in the context of enforcement negotiations and wet weather consent decrees.

This joint committee meeting will offer members an opportunity to discuss these issues from a legislative, regulatory, and legal perspective. The meeting will also address ongoing NACWA efforts related to resiliency and sustainability – including plans for an upcoming resiliency summit – and how these discussions are playing out in a variety of advocacy contexts. Other topics to be covered during the meeting will include federal legislative developments regarding budget and funding, an update on key NACWA litigation matters, and a presentation/update on current clean water issues facing western and arid states.

Additional information on the Winter Conference, including registration and hotel details, is available on NACWA’s website. We hope you will be able to join us.

CURRENT CASES

Federal Court Dismisses Challenge to Water Quality Trading

A federal district court in Washington, DC, issued a ruling  on December 13, dismissing a legal challenge to the water quality trading provisions in EPA’s final total maximum daily load (TMDL) for the Chesapeake Bay, thereby preserving a vital tool to achieve water quality improvements in the Chesapeake Bay watershed and nationwide. The court in Food and Water Watch, et al. v. EPA dismissed the case because the environmental activist groups that filed the litigation did not have legal standing to bring the challenge and because the provisions of the TMDL discussing trading did not qualify as final agency action. NACWA joined with a number of other municipal organizations to intervene in the litigation in early 2013 in defense of water quality trading programs as an important tool to achieve water quality improvements through the use of effective, verifiable market-based systems.

Although the court did not rule directly on the merits of whether water quality trading programs in general are legal under the CWA, there is language in the decision suggesting that specific programs and offsets can be legal as long as they comply with the overall requirements of the CWA. In particular, the court noted that “offsets and trades are but one option in the States’ arsenal” to achieve water quality and strike the balance to, “in an environmentally friendly and cost-effective way, (1) comply with the TMDL numbers allotted to them, (2) comport with the CWA, and (3) accommodate population growth, and promote agricultural and industrial growth.” The court also explained that trading programs can help states “meet the goals of the CWA.” This language acknowledges the environmental and cost benefits of trading and suggests that trading approaches can be consistent with, and help achieve, the requirements of the CWA.

NACWA applauds the decision and the positive language in the ruling in support of water quality trading. The plaintiffs have indicated they are considering an appeal of the decision, and NACWA will monitor any developments.

Notice of Appeal Filed in Chesapeake Bay TMDL Litigation

On October 7, the American Farm Bureau filed a notice of appeal  in the Third Circuit to the September 13 federal district court ruling  in American Farm Bureau v. EPA - the Chesapeake Bay TMDL litigation. The lower court’s ruling rejected all challenges to the TMDL made by the agricultural plaintiffs in the case, and granted requests by EPA and a group of municipal intervenors, including NACWA, to uphold the final TMDL and its holistic watershed approach that requires pollution reduction from all sources of impairment to achieve nutrient and sediment reductions.

This decision marked a significant win for NACWA, the Maryland Association of Municipal Wastewater Agencies (MAMWA), and the Virginia Association of Municipal Wastewater Agencies (VAMWA) – all of whom jointly intervened as defendants in the litigation in October 2011 to represent the municipal clean water community. NACWA will seek to actively help defend and uphold the lower court ruling on appeal. Briefing for the appeal will begin in late January. Additional information on the litigation can be found in Advocacy Alert 13-14.

EPA Files Notice of Appeal in Mississippi River Nutrients Case

On November 18, EPA filed a notice of appeal in the Fifth Circuit to the September 20 federal district court ruling  that EPA is required under the CWA to make a determination within 180 days on whether federal numeric nutrient criteria (NNC) are necessary for the Mississippi River Basin (MRB) and Gulf of Mexico. The U.S. District Court for the Eastern District of Louisiana did, however, affirm EPA’s discretion to consider a wide variety of factors in making such determination. EPA informed the parties when filing the notice that a final decision on whether to pursue a substantive appeal had not yet been made, but that the Agency was filing the notice to preserve its appeal rights.

The Gulf Restoration Network, et al. v. EPA case arose from a challenge by environmental activist organizations to EPA’s 2011 denial of their 2008 petition requesting federal NNC and nutrient TMDLs for all waters nationwide where such criteria have not been developed or in the alternative, at a minimum, to establish such criteria and TMDLs for all waters in the MRB and Gulf of Mexico. NACWA requested and was granted intervention in the case in late May 2012.

An important aspect of that ruling for NACWA and its utility members was the court’s rejection of arguments that EPA cannot rely on non-scientific factors when making a necessity determination. This provides an opportunity for EPA to make a “no” decision on the need for federal NNC – thus meeting the court’s directive to make a formal necessity determination – using many of the same factors from its 2011 petition denial. NACWA will continue advocating strongly with EPA in support of this outcome. Another positive component of the ruling was the court’s clear affirmation that states have primary responsibility under the CWA for developing water quality standards, which echoes NACWA’s longstanding position that was expressed in this case through briefing. NACWA will aggressively defend these positive rulings from the decision if an appeal goes forward.

NACWA will remain actively involved in the case and update the membership on any developments. Additional details on the decision can be found in Advocacy Alert 13-15.

Court Denies Activist Group’s Request for Rehearing in SSI Litigation

On October 24, the DC Circuit rejected requests from the Sierra Club for rehearing of the August 20 decision  in NACWA vs. EPA, thereby preserving the court’s partial remand of the rule to EPA to correct the significant technical flaws in the final Sewage Sludge Incinerator (SSI) regulations. In its August ruling, the court upheld EPA’s statutory authority for promulgating the rule. However, the decision marked a partial victory in NACWA’s longstanding challenge to EPA’s SSI rule when the court agreed with NACWA that EPA’s technical basis for the rule was flawed and remanded the rule. See the August 23 Clean Water Current for more information on the court’s ruling.

NACWA plans to file an administrative petition with EPA requesting that the Agency temporarily delay the current compliance deadline under the SSI Rule until the remand process is complete. NACWA will also continue its pending legal challenge to EPA’s non-hazardous secondary materials (NHSM) rule, which provides the critical regulatory underpinning for the SSI Rule. Initial briefing in the NHSM litigation is expected to occur in early 2014, with final briefing by the end of 2014 and a decision likely sometime in the first part of 2015. 

Coalition Meeting on Biogenic Greenhouse Gas Issues

NACWA and other members of the Biogenic CO2 Coalition met on December 12 to discuss current EPA efforts regarding possible regulation of carbon dioxide (CO2) from biogenic sources, including wastewater treatment plants, and the potential impacts of a challenge before the U.S. Supreme Court to EPA’s existing greenhouse gas (GHG) regulations. During the meeting, coalition members discussed how the Utility Air Regulatory Group v. EPA litigation before the Supreme Court, scheduled for argument in late February with a decision likely by late June 2014, could limit EPA’s ability to regulate biogenic CO2 sources. Although the case does not directly deal with biogenic emissions, a ruling by the court on certain issues raised by the petitioners could effectively remove biogenic sources from EPA’s GHG regulatory authority under the Clean Air Act (CAA).

Coalition members agreed that future efforts to advocate for a permanent biogenic GHG exemption by EPA, including the option of filing a petition seeking a deferral, will be influenced by the outcome of the case. In the meantime, the coalition agreed to continue conversations with EPA about their regulatory plans, including possible efforts to craft a draft regulatory proposal for biogenic sources.

NACWA joined the coalition earlier this year to add momentum to its effort to advocate for a permanent exemption from CAA permitting requirements for CO2 from wastewater treatment plants. EPA approved a temporary deferral for CO2 sources in 2011, but that deferral was struck down by a federal appellate court on July 12 in the Center for Biological Diversity, et al. v EPA case. NACWA had filed an amicus brief in the litigation supporting EPA’s deferral of biogenic emission from wastewater plants. However, the deferral rule will remain in place while the Supreme Court reviews the pending challenge to EPA’s underlying GHG regulations. NACWA remains hopeful that the Association will be able to achieve a regulatory CO2 exemption for municipal wastewater treatment facilities.

NACWA Files Amicus Brief in Ohio Stormwater Case

On November 12, NACWA joined the Association of Ohio Metropolitan Wastewater Agencies (AOMWA) in filing an amicus brief  in an appeal to the Ohio Supreme Court of the September 26 state appellate court ruling  in Northeast Ohio Regional Sewer District v. Bath Township, Ohio, et al., that NACWA member the Northeast Ohio Regional Sewer District (NEORSD) had no authority to enact its Regional Stormwater Management Program (SMP). The court further held that NEORSD lacked requisite authority under state statute, or the District’s Charter, to enact a stormwater fee and is enjoined from implementing, levying and collecting such a fee.

NACWA’s brief underscores how the court’s rejection of NEORSD’s SMP has broad implications that may hinder the ability of wastewater utilities statewide to address stormwater runoff, stating that “[w]ithout the ability to manage stormwater, Ohio’s wastewater utilities already grappling with challenging and costly federal consent decrees and Clean Water Act requirements will lose a valuable set of tools for sustainable, affordable compliance.”

Moreover, NACWA’s brief highlights the importance for clean water agencies in Ohio – and nationwide – to sufficiently fund stormwater and other wet weather management programs that are necessary to meet federal enforcement orders. In addition to regulatory compliance challenges, utilities that have their funding mechanisms inappropriately struck down by courts may be unable to manage runoff that threatens to overwhelm sewers, flood basements, wash out roads, and damage habitats in rivers and streams.

Court Issues Decision in Missouri Litigation

The Missouri Supreme Court issued a decision  on November 12 in Zweig vs. MSD St. Louis upholding a lower court ruling that invalidated the stormwater fee program administered by NACWA member the Metropolitan St. Louis Sewer District (MSD). The court determined through a detailed analysis that MSD’s contested stormwater user charge qualified as a tax and not a user fee under Missouri state law, and further determined that the charge was invalid because it had not been put to a voter referendum as required by Missouri law. NACWA, and a number of other municipal groups, filed an amicus brief  supporting MSD’s efforts to have the state supreme court overturn the lower court decision.

Although the direct legal impact of this decision is confined to Missouri, the issues involved in this litigation have potential national implications for other municipal stormwater utilities using a similar fee structure because the case raises the larger question about the legality of stormwater fee methodology. NACWA participated in the case to push back against any negative legal precedent regarding the use of impervious surface as a basis for stormwater charges and will continue to aggressively defend municipal storwmater fee programs in the judicial arena.

ISSUES OF INTEREST

NACWA, Other Associations Urge EPA to Apply Blending Decision Nationwide

On November 26, NACWA joined with other municipal organizations – including the National League of Cities, the U.S. Conference of Mayors, and the National Association of Counties – to send a letter  to EPA requesting clarification on how the Agency will implement the March 2013 decision by the Eighth Circuit Court of Appeals in Iowa League of Cities v. EPA. The court found that EPA’s blending prohibition, which restricted how municipalities could design facilities to address peak flow processing, exceeded the Agency’s statutory authority under the CWA and was inconsistent with both EPA’s secondary treatment rule and bypass rule.

On November 20 at NACWA’s National Clean Water Law Seminar, EPA’s Acting Assistant Administrator for Water Nancy Stoner stated that EPA believes the decision only has binding legal effect within the geographic area covered by the Eighth Circuit Court of Appeals. This includes the states of Arkansas, Missouri, Iowa, Nebraska, Minnesota, North Dakota, and South Dakota, which are in four different EPA Regions. Stoner indicated that outside of the Eighth Circuit, EPA will evaluate the use of blending on a case-by-case basis. Stoner further noted that EPA will consider a permittee’s unique circumstances – as well as all other applicable legal decisions – when determining what is appropriate for CWA compliance regarding blending in states outside the Eighth Circuit.

NACWA believes the ruling does have national applicability and will strongly resist any efforts by EPA to limit the case to only the Eighth Circuit. As stated in the letter from NACWA and the other municipal associations, “Congress expressly granted the circuit courts original jurisdiction to review the NPDES regulations at issue under Section 509 of the CWA to ensure nationwide uniformity and ... EPA regulations provide for only one circuit to render an opinion on a petition for review. Consequently, we believe there is no legal basis to assert that the Eighth Circuit decision does not apply nationwide... The issues in this case have been causing delay and confusion for municipal entities throughout the country in addressing wet weather compliance and have greatly increased local costs, unnecessarily.”

Proposed Clean Water Act Jurisdiction Rule at OMB

In September, EPA announced that it was abandoning its pursuit of guidance and instead pursuing a formal rulemaking process to clarify the jurisdiction of the CWA. The Agency, along with the U.S. Army Corps of Engineers (the Corps), sent a draft rule to the White House Office of Management and Budget (OMB) for review. This rule officially replaced EPA’s previously submitted draft guidance on CWA jurisdiction and set in motion a more formal rulemaking procedure. The draft rule has not been publicly released yet for review and comment, although a leaked version  has circulated.

Based on review of the leaked proposal, the draft rule would assert CWA jurisdiction over all natural and artificial tributary streams, lakes, ponds and wetlands that affect the chemical, physical and biological integrity of larger, downstream navigable waters. EPA and the Corps concluded that a significant nexus exists between adjacent water bodies and downstream navigable waters and interstate waters. Thus, according to the agencies, there is no need for case-specific nexus determinations for tributaries and adjacent waters because a significant nexus applies categorically to all. This conclusion is supported by EPA’s new draft science report titled Connectivity of Streams and Wetlands to Downstream Waters  that was submitted to EPA’s Science Advisory Board (SAB) in September for independent peer review. The science report is meant to bolster EPA and the Corps’ draft rulemaking – and portions of the draft rule submitted to OMB directly incorporate information reflected in the report.

However, in an important positive development for NACWA’s members, the leaked version of the draft rule preserves the existing regulatory exemptions from CWA jurisdiction for waste treatment systems. NACWA previously submitted comments  on EPA’s draft guidance calling for the preservation of this exemption, and is pleased the draft rule appears to maintain the exemption. However, additional clarifications in the rule regarding stormwater and other key areas will be needed, and NACWA will use the public comment period afforded by the rulemaking process to address these issues. NACWA is pleased with EPA’s decision to pursue full-fledged rulemaking as opposed to informal guidance, which will afford NACWA and interested members the opportunity to weigh in.

EPA is expected to formally propose the draft rule for public comment at some point in early 2104. The Association will keep members updated on EPA's science report, the rulemaking process and additional opportunities to comment on these initiatives as they develop.

NACWA’s 2014 Wet Weather Consent Decree Handbook

NACWA is developing a new 2014 Wet Weather Consent Decree Handbook that will be released in late April 2014. The first Consent Decree Handbook, published in 2003, was extremely well received by the Association’s members. NACWA has since published two supplements to the original Handbook. These three publications have served as a valuable tool for municipal attorneys, managers, and staff to use during negotiations over federal or state enforcement actions.

Since publication of the last supplement, approximately 60 new consent decrees and amendments have been entered or lodged in federal court. While the agreements have been posted on the Consent Decree e-Library on the Association’s website, members would benefit from analysis of these often lengthy and complex agreements. In addition, considerations related to integrated planning, climate/resiliency, aging infrastructure, energy efficiency/production, water reuse and reclamation, resource recovery, and green infrastructure are changing the landscape of consent decree negotiation.

Accordingly, NACWA is embarking upon a complete rewrite of the Handbook rather than issuance of another supplement in order to provide the highest level of detail, analysis and attention to new developments in the wet weather consent decree arena. The document will be released as an electronic publication, which will be a more searchable, revisable, accessible and interactive tool for NACWA membership.

NACWA has formed a volunteer review team with a wealth of consent decree expertise and experience to assist with development of the Handbook to ensure that the final product will equip our members with the most up-to-date consent decree information, resources and analyses to facilitate negotiation/renegotiation of decrees that will best serve their communities and the environment.

NACWA looks forward to providing this new and valuable resource to the membership next year. Anyone with questions about this project can contact Amanda Waters at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

New on NACWA’s Website –State Action Track

November marked the launch of a new feature on NACWA’s Member Pipeline: State Action Track, a web-based tool that allows members to search and track regulations and bills across a variety of clean water topics by state. Launched on November 7 via Advocacy Alert 13-17, State Action Track adds to the Association’s suite of member benefits in a unique way – giving members easy-to-use access to those legislative and regulatory happenings that affect them the most. Not only is the tool a value-added experience for members, State Action Track illustrates NACWA’s commitment to increasing state and regional collaboration by enhancing the Association’s ability to monitor state and regional issues and help inform effective federal advocacy. To access the legislation tracking tool, go to www.nacwa.org/legtracking and the regulation tracking tool at www.nacwa.org/regtracking.