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The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Fall 2014 Legal Update.

Legal advocacy is a central component of NACWA’s mission to advance national advocacy goals and safeguard the interests and rights of NACWA Member Agencies. This Update provides summaries of current legal initiatives and discusses developments in NACWA’s litigation matters. Additional information on cases discussed in this Update with links to key rulings and pleadings can be found on the Association’s Litigation Tracking web page. For a condensed overview of all active NACWA litigation, see the Litigation Tracking Spreadsheet.

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 Registration is Open - Join Us in Florida to Learn the Latest in Clean Water Law & Get a Great Tan!

Registration is now available for NACWA’s 2014 National Clean Water Law Seminar. Scheduled for November 19 – 21 in sunny St. Pete Beach, Florida, the Seminar is the only one of its kind focused exclusively on key legal and regulatory issues impacting the municipal clean water community.

The Seminar promises to deliver timely and informative information covering the hottest issues in clean water law including integrated planning; funding and financing; stormwater; wet weather and enforcement developments; legal considerations related to green infrastructure; and a review of the most important Clean Water Act cases of the past year. This year’s program will also include new features, such as introductory primer sessions on the Clean Air Act (CAA) and on biosolids regulations, along with a regulatory hot topics discussion featuring top EPA and state regulatory officials.

As in past years, Continuing Legal Education (CLE) credits, including ethics credits, will be available. Additional details on the Seminar, including hotel and registration information and a draft agenda, are available on NACWA’s website. Be sure to join your clean water colleagues for sun, fun, and great legal discussion!

Legal Hot Topics Webinars Continue to Draw Large Audiences

Another great crowd tuned in for the September 17 Legal Hot Topics Web Seminar featuring a presentation by NACWA Board Member Andrew Kricun, P.E., BCEE, Executive Director/Chief Engineer, Camden County Municipal Utilities Authority, on Urban Environmental Justice – A New Jersey Case Study; and a presentation by James B. Slaughter of NACWA Legal Affiliate Beveridge & Diamond, P.C. on Land Application of Biosolids & Rural Environmental Justice – Litigation Updates & Rural Environmental Justice Issues Associated with Siting.

These web seminars are designed to benefit municipal utility attorneys and managers and provide an excellent and convenient way to keep current on the latest clean water issues, developments, trends and case law.

Other legal webinars held in 2014 provided valuable information on a variety of issues including nutrient allocations in total maximum daily loads (TMDLs), biosolids management, defense of the Clean Water Act (CWA) “permit shield,” the status of CWA jurisdiction, MS4 permitting & compliance strategies, water quality trading, and tips on avoiding and resolving construction disputes. Handouts from all previous seminars are available on NACWA’s website. Additional legal web seminars are planned for the coming months -- registration information and additional details will be available soon.

CURRENT CASES

U.S. Supreme Court Limits POTW Clean Air Act Permit Obligation for Greenhouse Gases

The U.S. Supreme Court ruled on June 23 in Utility Air Regulatory Group (UARG) v. EPA  that EPA is prohibited under the CAA from regulating stationary sources via the Title V and Prevention of Significant Deterioration (PSD) programs based solely on greenhouse gas (GHG) pollutants. Publicly owned treatment works (POTWs) will benefit from this decision because the vast majority are considered non-major sources under the CAA and potentially faced future Title V and PSD permitting due to GHG emissions generated onsite by burning of biogas and/or biosolids, process emissions, or other sources of GHG emissions.

The Court’s decision will keep many POTWs out of the Title V and PSD programs altogether and allow others to narrow the scope of their Title V obligations. NACWA has long advocated to exempt POTWs from CAA permitting requirements based solely on GHG emissions, both in separate federal litigation and with EPA. This ruling by the Supreme Court is consistent with NACWA’s advocacy to avoid GHG permitting for POTWs, and the Association is pleased with the outcome.

For more information, see Advocacy Alert 14-14. Members with any questions about the decision and its impact should contact Nathan Gardner-Andrews at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Briefing Soon to Conclude in NACWA’s Challenge to EPA’s Non-Hazardous Secondary Materials Rule

On October 14, briefing will conclude in the Solvay USA Inc., et al. v EPA litigation on EPA’s final Non-Hazardous Secondary Materials (NHSM) Rule. NACWA has been active in this case to bolster its strong advocacy on sewage sludge incinerator (SSI) issues.

The NHSM Rule classifies sewage sludge when combusted as a solid waste and provides a critical regulatory foundation for EPA’s SSI Rule. The SSI Rule in turn regulates SSIs as a type of solid waste incineration unit. The NHSM Rule does not have any direct regulatory impact on sludge that is managed via means other than incineration.

NACWA’s opening brief  in this case argues that existing federal solid waste laws have an explicit “domestic sewage exclusion” (DSE) that prevents EPA from regulating sludge as a solid waste. The brief also points out that EPA’s arguments in NACWA’s previous legal challenge  to the SSI Rule acknowledge that domestic sewage is the direct cause of sewage sludge, and EPA has no legal basis to now claim that the DSE does not cover sludge when it is combusted. EPA and environmental activist groups filed response briefs  in recent months challenging NACWA’s position and arguing that the NHSM Rule properly classifies sewage sludge as a solid waste when combusted. NACWA will be submitting a reply brief in the coming weeks pushing back against EPA’s position.

NACWA’s litigation of this issue dates back to 2011 when the Association originally filed a legal challenge to the NHSM Rule and at the same time challenged the SSI Rule. For a complete background on this case, see Litigation Tracking.

Oral Argument Heard in Washington State Biosolids Land Application Litigation

On July 1, the Washington State Court of Appeals heard oral arguments in State of Washington v. Wahkiakum County. This litigation was filed by the lead biosolids regulator in the state – the Washington State Department of Ecology – to challenge a local ban on land application of Class B biosolids initiated by Wahkiakum County. In early 2013, a trial court issued a very short opinion upholding the class B ban on the grounds that the ban still allowed for class A biosolids land application, which represents a small percentage of biosolids recycling in Washington State. The Department of Ecology appealed that ruling.

During the recent oral arguments, the state argued that the ban on class B biosolids creates an irreconcilable conflict with a state program that sets standards for land application and issues site specific permits. NACWA, along with the Northwest Biosolids Management Association and a number of other parties, filed an amicus brief  in late May opposing the land application ban and participated in oral arguments as well to support the state’s position. The court seemed skeptical of the Wahkiakum County position during arguments and appeared to understand the importance of preserving local land application programs. A decision is expected soon.

This is an important issue for the clean water community nationally in defending biosolids land application. Litigation over such bans elsewhere has resulted in strong, pro-land application legal decisions in both federal and state court. NACWA has previously engaged in litigation against land application bans and will continue to actively fight against such bans across the country.

NACWA Will File Brief in Support of Chicago’s Consent Decree

In early October, NACWA plans to file an amicus curiae brief supporting Association Member Agency the Metropolitan Water Reclamation District of Greater Chicago (MWRD) in federal litigation over the entry of a wet weather consent decree. The case is currently on appeal to the U.S. Court of Appeals for the Seventh Circuit.

United States and State of Illinois v. Metropolitan Water Reclamation District of Greater Chicago involves efforts by environmental activist groups to alter a wet weather consent decree successfully negotiated by MWRD with federal and state regulators in late 2011. The activists sought changes to make the consent decree more stringent and costly, arguing among other things that the decree would take too long to complete and that the proposed storage capacity for sewer overflows was too small.

In January 2014, a federal district court issued a very strong decision and win for MWRD that dismissed the activist challenge and entered the decree as negotiated. In considering whether the consent decree was in the public’s best interest, the court noted the public’s interest in environmental improvement must be balanced with reasonable and affordable ratepayer investment. The activist groups appealed the district court decision to the Seventh Circuit in March 2014.

This case has potential significant national implications. If the Seventh Circuit upholds the lower court decision, it will serve as strong legal precedent for clean water agencies elsewhere in the country seeking to have consent decrees approved over objections from citizen groups. If the Seventh Circuit overturns the lower court decision, it could encourage citizen groups to intervene and force changes to consent decrees elsewhere in the nation.

NACWA Participates in MS4 Regulatory Requirement Case

NACWA is participating as amicus curiae in litigation before the Maryland Court of Special Appeals in a potential precedent-setting case over the appropriate regulatory requirements in municipal separate stormwater sewer system (MS4) permits. The major issue presented in Maryland Department of the Environment v. Anacostia Riverkeeper is whether the CWA requires MS4 permits to mandate “strict compliance” with water quality standards and related TMDLs.

The concept of “strict compliance” has long been advanced by environmental activist groups to require specific numeric effluent limits in MS4 permits. The case originated when a group of environmental activists challenged a local MS4 permit in Maryland, arguing that it was in violation of the CWA for failure to require strict compliance with water quality standards. The trial court ruled  that the MS4 permit did not contain enough “specific, enforceable standards.” Maryland appealed the decision.

NACWA joined with a number of other municipal organizations on August 1 to file an amicus brief  in the appeal arguing that the CWA creates a distinct standard for MS4s that replaces the requirement to comply with water quality standards and instead only requires control of pollutants to the maximum extent practicable (MEP). NACWA and its municipal partners also explain the significant economic burdens that strict compliance with water quality standards – including the possibility of numeric effluent limits – would place on MS4 utilities.

NACWA has a long history of defending the MEP standard and advocating against the inclusion of numeric limits in MS4 permits.

Ohio Supreme Court Hears Arguments in Stormwater Program/Fee Case

The Ohio Supreme Court heard oral arguments September 9 in Northeast Ohio Regional Sewer District (NEORSD) v. Bath Township, et al., which involves a challenge to a municipal stormwater management program instituted by NACWA Member Agency, the Northeast Ohio Regional Sewer District (NEORSD). The legal dispute over NEORSD’s authority for the program and related stormwater fee reached all the way to the state Supreme Court after conflicting decisions by two lower courts.

The Supreme Court judges were well prepared and very engaged during questioning. A number of judges on the 7-member panel appeared to endorse arguments put forth by NEORSD in defense of the stormwater program and seemed skeptical of contentions advanced by the challengers. Additionally, a significant number of the judges were attuned to, and concerned about, the environmental and flooding impacts related to stormwater management – and appeared to understand the need for robust and well-funded stormwater management programs. Full video coverage of the arguments is available here.

NACWA joined with the Association of Ohio Metropolitan Wastewater Agencies (AOMWA) to file a brief  in the case supporting NEORSD. The brief emphasizes the importance of municipal stormwater management and fee programs, arguing that the increasing complexity and cost of municipal stormwater regulations necessitate a more affordable, equitable, and effective method for utilities to manage and charge for stormwater services. Accordingly, the brief highlights the importance of providing legal recognition and protection for stormwater management programs like the one developed by NEORSD, including the ability for utilities to fund such programs.

NACWA’s participation in this litigation is part of the Association’s aggressive advocacy to defend stormwater programs. The Association has engaged in similar cases in the past and will continue to do so. A decision from the court is expected in the coming months, and NACWA will report any developments.

EAB Issues Ruling Affirming Flexibility for Nutrient Permit Limits

The U.S. Environmental Appeals Board (EAB) issued a positive ruling  on July 8 upholding the ability of clean water regulators to express discharge permit limits for nutrients in weekly or monthly averages, echoing arguments made by NACWA and its municipal partners in the permit appeal. The EAB’s decision in the City of Homedale Wastewater Treatment Plant rejected a request from an environmental activist group to review an EPA-issued permit for a POTW that included nutrient limits expressed as weekly and monthly averages and not as a true daily maximum limit. The NGO group had argued that an existing TMDL nutrient wasteload allocation for the plant should be interpreted and applied to require a daily maximum nutrient limit in the permit, rather than average discharge limits included by EPA.

The EAB rejected this interpretation and instead found EPA’s more flexible interpretation was acceptable. The EAB also reaffirmed the basic principle that discharge permit requirements do not have to be identical to TMDL wasteload allocations, only that the limits be consistent with the assumptions and requirements of the allocation.

NACWA joined with the Wet Weather Partnership and a number of state clean water associations in December 2013 to file a brief  in the appeal. NACWA is pleased with the EAB’s ruling and believes it reinforces the important flexibility available under the CWA to express nutrient limits in monthly or seasonal averages and not as true daily maximums.

Fourth Circuit Upholds Permit Shield

On July 11, the Fourth Circuit Court of Appeals issued a ruling in an appeal of a July 2013 lower court decision in Southern Appalachian Mountain Stewards v. A&G Coal Corp. regarding the scope of the protection afforded by Section 402(k) of the CWA, commonly referred to as the “permit shield.” The term “permit shield” means that compliance with a National Pollutant Discharge Elimination System (NPDES) permit constitutes compliance with the CWA.

The Fourth Circuit ruled that the mining permittee could not avail itself of the permit shield but reinforced the validity of EPA’s guidance on the shield. The court also upheld its previous decision in Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty , in which the court found that the shield extends to pollutants that are not expressly listed in the permit so long as the discharge was within the reasonable contemplation of the permitting authority at the time the permit was granted.

NACWA participated in the case via a joint amicus brief with other industry groups, arguing in favor of the permit shield. NACWA believes it achieved its objectives as an amicus because the ruling: 1) narrowed the holding of the lower court decision which had the potential to erode the defense and 2) limited the decision to the facts of the case. The determinative factor in the Fourth Circuit decision was that A&G Coal failed to properly complete its permit application by not answering an application question related to the discharge of selenium. The court held that there was no question that A&G was discharging selenium and no question that they had a duty to report the discharge on the permit application. NACWA’s amicus brief argued that permittees who fill out the application completely and in good faith should be covered by the shield. The Fourth Circuit ruling is in line with this interpretation.

NACWA believes this decision maintains the key elements of EPA’s permit shield policy and the Piney Run decision, and preserves the permit shield as a strong defense. The key lesson from this decision for NACWA members going forward is that clean water utilities should provide complete and accurate responses to all questions and information requests on a discharge permit application.

TMDL Litigation in Ohio Moves Forward

On June 25, the Ohio Supreme Court heard oral arguments in Fairfield County v. State of Ohio, addressing whether constitutional due process is violated when a permittee is denied the ability to challenge allocations in a TMDL until the allocations are used to develop NPDES permit limits. In February, NACWA and AOMWA filed a joint amicus brief  in the case arguing that permittees should have an opportunity for meaningful review – and potential legal challenge – of TMDL allocations before incorporation into a discharge permit, and that the failure to provide such review is a violation of due process. NACWA is awaiting a decision in the case and will report any developments.

Oral Argument Scheduled in Chesapeake Bay TMDL Appeal 

The Third Circuit Court of Appeals will hear oral argument on November 17 in American Farm Bureau v. EPA, an appeal by the American Farm Bureau (AFB) of a lower court ruling that rejected all AFB’s challenges to the final TMDL for the Chesapeake Bay and EPA’s inclusion of nonpoint sources as part of the TMDL. The decision also granted requests by EPA, NACWA and others 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.

NACWA has partnered with the Virginia Association of Metropolitan Wastewater Agencies and the Maryland Association of Metropolitan Wastewater Agencies in the litigation in order to provide a strong defense of the watershed approach to achieve water quality improvements. NACWA and its municipal partners filed a brief  earlier this year in the appeal supporting the lower court decision (as did a group  of major U.S. cities) and will participate in arguments on November 17.

Issues of Interest

NACWA, Milk Producers Sign Landmark MOU

On September 9, NACWA and the National Milk Producers Federation (NMPF) signed a Memorandum of Understanding  (MOU) to promote increased cooperation and communication between the two organizations and their members. Building on NACWA’s work that secured language in the Farm Bill’s Regional Conservation Partnership Program (RCPP) enabling clean water agencies to form regional partnerships with farmers, the MOU seeks to align utilities with nearby dairy farms to work together to improve water quality by improving manure management practices. The event and the Association received significant attention from key national policymakers, including Members of the House and Senate, EPA, and the U.S. Department of Agriculture as detailed in the joint press release.

Potential projects include cooperation on building anaerobic digesters, which can put manure to good use for generating electricity, and increasing production of water quality benefits through the use of nutrient separation technologies and land management practices, such as planting grass buffers near streams and using no-till planting in fields. As a part of the MOU, NACWA and NMPF have committed to work together to educate policymakers and regulators on the value of these partnerships and the need for clarity on whether clean water agencies can be credited for water quality improvements made upstream.

NACWA and NMPF are now interested in identifying several pilot projects to demonstrate that these types of partnerships can work. Please contact NACWA’s Senior Director of Regulatory Affairs, Chris Hornback, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it if your utility is interested in or is already working with a dairy.

New Lawsuit Filed on Blending

On August 12, a lawsuit was filed challenging EPA’s blending regulations. The petition for review  filed with the U.S. Court of Appeals for the District of Columbia contests EPA’s decision to limit application of the 2013 Iowa League of Cities v. EPA ruling to only the jurisdiction of the U.S. Court of Appeals for the Eighth Circuit.

NACWA has been at the forefront of efforts to push for national applicability of the Iowa League case, sending letters to EPA in November  and May  advocating for broad application of the decision to avoid delay and confusion for municipal entities across the country in addressing wet weather compliance. The Association’s correspondence, along with EPA’s subsequent responses in April and June , form the basis for this new legal filing on the blending issue.

The Association is currently reviewing the new lawsuit and is committed to continued aggressive advocacy on this issue going forward. Any members with thoughts or concerns regarding blending are invited to contact Nathan Gardner-Andrews, NACWA’s General Counsel, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

NACWA Joins Dr. Oz to Address Impact of Wipes on our Sewer Systems

The impacts of flushable wipes and other wipe products were shown in graphic detail on The Dr. Oz Show on Tuesday, September 9, when Dr. Oz visited the Newtown Wastewater Treatment Plant of NACWA Member Agency the New York City Department of Environmental Protection. Dr. Oz was both surprised and interested to learn that although wipes may be flushed down the toilet, most of them are not breaking down before reaching the treatment facility. Back in the studio, Dr. Oz discussed the problem with Cynthia Finley, NACWA’s Director of Regulatory Affairs, who explained that the current voluntary flushability guidelines are not stringent enough to protect sewer systems. The segment is available on The Dr. Oz Show website, broken into Part 1 and Part 2.

NACWA encourages Member Agencies to use this segment as an opportunity to engage in social media to raise the awareness and highlight NACWA’s Toilets Are Not Trash Cans! campaign. The Association is working on additional materials for the campaign that clean water agencies may use in public education efforts. Additionally, the work of a Technical Workgroup comprised of representatives from NACWA, the Water Environment Federation (WEF), the American Public Works Association (APWA), and INDA (the trade association of the nonwoven fabrics industry), that is addressing the issues related to flushability guidelines, is nearing its conclusion.

EPA Responds to NACWA Inquiry, Reaffirms Commitment to CSO Policy

On August 8, EPA forwarded NACWA a letter  reiterating the Agency’s commitment to continued application of the 1994 Combined Sewer Overflow (CSO) Policy. The letter contained a number of positive statements, including that EPA and all of its regional offices remain “committed to implementing the 1994 CSO Policy which establishes a uniform, nationally consistent approach to controlling” CSOs. Most importantly, EPA expressly committed to continued use of the “knee of the curve” analysis as the appropriate tool to determine “where the increment of pollution reduction achieved in the receiving water diminishes compared to the increased costs” with regard to CSO control measures. The Agency also reiterated the CSO Policy’s expectation that CSO control plans will be designed to meet existing water quality standards unless efforts are underway to reevaluate water quality standards at the same time CSO long-term control plans are being developed.

The EPA correspondence was sent in response to a NACWA letter  and subsequent meeting with Agency staff expressing concern over inconsistent application of the CSO Policy. NACWA is pleased that EPA has issued such a strong recommitment to implementing and applying the CSO Policy, as written. The Association encourages members to use this letter, as necessary, with regard to conflicting messages on the CSO Policy from state regulators or EPA regional offices.

Integrated Planning in the Garden State

NACWA and the Association of Environmental Authorities of New Jersey (AEANJ) will host an Integrated Planning (IP) Workshop in Newark, New Jersey in late October. This Workshop will be a facilitated discussion among key EPA headquarters staff, EPA Region 2 staff, New Jersey State regulators and utility and municipal stakeholders on using the EPA’s Integrated Municipal Stormwater and Wastewater Planning Approach Framework  to meet CWA obligations. This workshop is particularly timely due to the fact that the New Jersey Department of Environmental Protection recently issued draft NDPES permits to 21 New Jersey municipalities with CSOs.

Additional resources on IP, like EPA's recently released Frequently Asked Questions document, can be found on NACWA's website. If you would like additional information regarding this workshop, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it at 202.533.1839.