November 2014
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The Power of Legal Advocacy: Taking Our Case to the Courts

In a few weeks, a group of clean water attorneys from across the nation will gather in Florida for NACWA’s annual National Clean Water Law Seminar. The top clean water legal minds in the country will participate in this event, engaging and debating with one another on the most important legal developments of the day and reviewing NACWA’s ever-expanding portfolio of active litigation matters. It’s a remarkable event, and one I marvel at every time I attend because of the unprecedented growth of NACWA’s legal program over the last 40 years.

This year will be my final Law Seminar as Executive Director, so I would like to take a moment to share my thoughts on the evolution of NACWA’s legal advocacy and why I firmly believe it will play an increasingly central role in the future of the organization and the clean water sector.

In the early days of NACWA (then AMSA), getting involved in a lawsuit was the last thing on the Association’s mind. Money from the construction grants program was flowing and the focus of the Association’s members was on working with Congress and EPA to implement the new Clean Water Act (CWA) programs. Legislative and regulatory issues were the priority, with legal advocacy a distant afterthought. And even if there were some utilities frustrated by EPA’s new regulatory mandates, everyone was reluctant to tangle with the Agency in court over fears that the grant money might somehow be impacted.

However, things began to slowly change in the 1980s as EPA increased its regulatory footprint and – more importantly – NACWA members faced mounting legal pressures to address their wet weather sewer overflows. In fact, wet weather concerns led to one of NACWA’s first litigation actions, which was participation before the U.S. Supreme Court in 1980 in the case of City of Milwaukee v. State of Illinois over whether the federal CWA trumped common law when addressing sewer overflows. NACWA also engaged in litigation later in the 1980s over EPA’s pretreatment program, eventually prevailing and winning its attorney’s fees. Despite the Association’s previous hesitation to fight EPA in court, our ultimate victory in these two cases proved that legal advocacy could be a powerful new weapon in NACWA’s arsenal.

NACWA began taking a more aggressive legal posture in the 1990s, and the reason was clear: a rapid increase in EPA enforcement on municipal wet weather sewer overflows. As more and more NACWA members found themselves under consent decrees, the Association moved much more aggressively in the direction of using legal action to defend its members’ interests. Two other important factors also contributed to this change: the end of the construction grants program, which diminished clean water utilities’ reluctance to sue EPA; and, the rise of third-party activist group citizen lawsuits under the CWA, which led to the realization that utilities had to be much more proactive in protecting their legal rights.

By 2000, NACWA had already joined multiple lawsuits across the country dealing with issues ranging from stormwater and total maximum daily loads to enforcement issues and NPDES permit regulations. We also provided a unique forum for our members to exchange ideas and discuss priority legal issues impacting their operations, holding our first Law Seminar in 1998. But this was only the beginning! In 2001 the Association took a major step forward by hiring its first in-house General Counsel. This move signified once and for all our unequivocal commitment to making legal advocacy a central component of our work, alongside our legislative and regulatory efforts. More importantly, it opened the door for NACWA to grow its legal affiliate membership category, expand it Legal Affairs Committee, participate in a host of new litigation efforts, and develop an amazing array of legal tools and resources for its members.

By 2010, through the support of in-house legal staff and the Association’s Targeted Action Fund (TAF), NACWA had participated in over 25 different federal and state lawsuits dealing with clean water issues. The Association had also produced a series of high-quality legal resources to help members understand and protect their legal rights, including an online Litigation Tracking webpage, a Consent Decree Handbook analyzing and summarizing wet weather consent decrees to help utilities negotiate enforcement actions, and a comprehensive online collection of consent decrees in our Consent Decree e-Library.

Today, NACWA has two full-time practicing attorneys on staff and an active litigation portfolio addressing a wide variety of issues including nutrients, stormwater, water quality regulations, permit requirements, biosolids, consent decrees, and even air emissions standards. And we continue to provide our members with top-notch legal resources and educational opportunities, such as our recent complete rewrite and update to our Consent Decree Handbook and the continued success of our annual Law Seminar. Our legal program has come a long way from its humble beginnings!

Moving forward, I believe NACWA’s legal advocacy will play an even more important role in advancing the Association’s goals. We all know that the regulatory environment will only get tougher, that finding the financial resources at the local level to meet our obligations will only get harder, and that the CWA will continue to struggle to meet our new water quality challenges. We are facing significant hurdles, and the courts must play an even bigger role in achieving NACWA’s advocacy priorities.

NACWA’s legal advocacy will be incredibly important going forward on some of the biggest issues facing the Association, especially complex challenges such as nutrients, affordability, and the appropriate role of nonpoint sources in addressing water quality. I believe NACWA must be more aggressive in taking the lead in legal battles over these issues, not only by being an active participant in existing cases but also by initiating litigation on its own where necessary. Lawsuits can be powerful tools for change and NACWA should seek to leverage its growing expertise in the legal field, supported by a robust and well-funded TAF to provide a “legal war chest.”

Watching the growth of NACWA’s legal program has been one of my greatest satisfactions as Executive Director. I am deeply grateful to the NACWA Board of Directors and the many Association leaders over the years who supported, fostered, and funded our legal work. We have made great progress but there is much left to do – so let’s be ready to defend our public agency members and, when necessary, proactively take our case to the courts!