» Update Archive

The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Spring 2015 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 This e-mail address is being protected from spambots. You need JavaScript enabled to view it  (202/833-3692) or to This e-mail address is being protected from spambots. You need JavaScript enabled to view it  (202/530-2758).

See You in Philadelphia for NACWA’s Wet Weather Consent Decree Workshop

NACWA will be hosting the second annual Wet Weather Consent Decree Workshop, on April 29-30 in Philadelphia.

This day-and-a-half event will feature top clean water attorneys and experts from around the nation, including a unique opportunity to hear directly from senior EPA officials representing both Headquarters and Regions about their perspectives and insights on the enforcement process. Speakers will also address important strategies that utilities should consider in enforcement negotiations, such integrated planning, adaptive management, and impacts on community affordability. There will also be significant discussion of implementation issues, including how to best communicate about wet weather enforcement with your public and with elected officials, how to deal with challenges that may arise while implementing a wet weather enforcement order, and how to pursue modification of an existing order.

Additionally, Workshop participants will have the opportunity to participate in separate roundtable discussions with their peers on these issues, exchanging ideas, sharing experiences, and networking with other clean water colleagues. All Workshop attendees will also receive early access to NACWA’s updated Wet Weather Consent Decree Handbook, an invaluable tool for any utility negotiating, implementing, or renegotiating a wet weather enforcement order.

Utilities currently negotiating with regulators on wet weather issues should not miss this workshop. Not convinced yet? Read Don’t Gamble on Wet Weather Consent Decree Negotiations.

Webinar Addresses Two Key Legal Issues: Environmental Compliance & Sediment Remediation

The March 18 Legal Hot Topics Web Seminar featured compelling presentations on environmental compliance for wastewater utilities and legal issues associated with sediment remediation.

Brent Fewell , a partner with NACWA Legal Affiliate Troutman Sanders LLP, addressed the responsibilities of clean water agencies and their employees to monitor and effectively comply with ever-changing federal and state laws and regulations on a routine basis. Mark Thimke , a partner with NACWA Legal Affiliate Foley & Lardner LLP, discussed sediment remediation and focused on emerging issues with respect to potential liability for municipal dischargers, including ways in which clean water agencies can be creative in addressing sediment issues to limit or resolve liability. Presentations and a recording are available on NACWA’s website.

Mark your calendars for the next Legal Hot Topics Web Seminar to be held on June 17. Please send suggestions on topics to cover in future web seminars to This e-mail address is being protected from spambots. You need JavaScript enabled to view it (202/833-3692) or This e-mail address is being protected from spambots. You need JavaScript enabled to view it (202/530-2758) for consideration.

Law Seminar Moving to Early November

Mark your calendars now for November 4-6, 2015 for NACWA’s National Clean Water Law Seminar, which will take place in sunny Henderson, Nevada. Designed for both clean water attorneys and utility managers, the Law Seminar examines the most important current topics in clean water law.

The Seminar will be held a few weeks earlier this year than in the past, so make note! A recap of last year’s Seminar is available here, and presentations are available on NACWA’s website.

CURRENT CASES

TMDLs/Nutrients

NACWA Helps Secure Key Legal Victory in Ohio TMDL Litigation

The Ohio Supreme Court issued a ruling  on March 24 in the Fairfield County v. State of Ohio case, vacating the phosphorus limits in a National Pollutant Discharge Elimination System (NPDES) permit because the limits were derived from an underlying total maximum daily load (TMDL) that should have been promulgated as a rule pursuant to the state Administrative Procedures Act (APA). The court’s ruling echoes arguments made by NACWA and the Association of Ohio Metropolitan Wastewater Associations (AOMWA) in a joint brief  filed in the case.

In a 5-2 decision, the court held that the TMDL had not been promulgated as a rule as required in Ohio Revised Code 119, the Ohio APA, which the court held was a violation of the permittee’s due process. The permittee, Fairfield County, was denied the ability for meaningful review of the limits and the ability to challenge the TMDL.

The court further held that the rulemaking process must be undertaken before the TMDL is submitted to U.S. EPA for review and approval. This process gives interested parties – including clean water utilities – an opportunity to challenge both the legal and scientific bases of TMDLs.

The joint NACWA/AOMWA brief argued 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. Before this ruling, state regulators in Ohio argued that a utility could not mount a legal challenge to a specific TMDL allocation or limit until that allocation was used to derive a particular effluent limit in an NPDES permit. Although this ruling only applies to Ohio, it sets a very positive precedent nationwide for clean water agencies making similar arguments and may impact how other courts elsewhere in the country examine this issue in the future.

No Decisions Yet in Chesapeake Bay TMDL or Mississippi River Nutrients Cases

NACWA continues to await decisions from the Third Circuit Court of Appeals in a challenge to EPA’s final TMDL for the Chesapeake Bay and from the Fifth Circuit Court of Appeals in litigation over nutrient limits for the Mississippi River Basin. Both cases have the potential to set national legal precedent on issues of significant importance to NACWA members. NACWA has been actively involved in the two litigation matters and will update the membership as soon as there are any developments.

Biosolids

NACWA Discusses Status of SSI Petition, Rule Implementation with Key EPA Staff

In late January, NACWA met with key EPA Office of Air & Radiation staff to discuss the status of the Association’s Petition for Reconsideration of the Sewage Sludge Incineration (SSI) Rule, the Agency’s efforts to address the DC Circuit’s August 2013 remand  of portions of the rule, and a number of implementation issues.

Based on the discussion, it is clear that EPA remains unpersuaded by NACWA’s arguments for a stay of the compliance date and the Association’s request that the Agency reconsider its decision to regulate SSIs under Section 129 of the Clean Air Act. EPA senior policy officials had indicated in early 2014 that they were not inclined to grant a stay or reconsider the rule, but NACWA proceeded with filing its petition for a stay and reconsideration last May to force the Agency to make an official determination.

While there is no final decision at this point on the petition, there appears to be no change in EPA’s position to leave the compliance date of March 2016 in place and to address SSIs under Section 129. NACWA again asked for a final, written response to its petition, but anticipates that such a response, whenever it comes, will deny the petition. This means that the current March 2016 compliance date (or earlier if determined by the state) will remain in place, and that whatever relief or flexibility NACWA seeks from the current emissions standards will have to be within the confines of the Section 129 requirements. For more information on the meeting, see the February 2015 Regulatory Update.

Oral Arguments Scheduled in Non-Hazardous Secondary Materials Rule Litigation

The District of Columbia Circuit Court of Appeals has set oral argument  for May 11, 2015 in the Eco Systems Operations, et al. v. EPA case, which is a legal challenge to EPA’s final Non-Hazardous Secondary Materials (NHSM) Rule. The NHSM Rule classifies sewage sludge that is incinerated in SSI units as a solid waste and provides a key regulatory foundation for EPA’s more stringent SSI Rule.

NACWA’s lawsuit , filed with support of the Association’s SSI Advocacy Coalition, argues that the rule’s treatment of sewage sludge is illegal and contrary to existing federal law that exempts domestic sewage from solid waste classification. If the Association is successful in overturning this portion of the rule, it will also strike a major blow against the SSI Rule. The court, however, is not expected to issue a decision in the case until late summer or early fall 2015. Accordingly, NACWA members with SSI units should continue to plan for compliance with the new SSI Rule by the March 2016 (or earlier in some states) compliance deadline.

NACWA will be working to prepare for oral arguments over the coming weeks, and anticipates playing an active role during the hearing on May 11.

NACWA Files Brief in Pennsylvania Biosolids Case

On December 23, 2014, NACWA submitted a brief  to the Pennsylvania Supreme Court in Gilbert v. Synagro, a case addressing whether the land application of biosolids is an agricultural activity that is protected under “right to farm” laws.

The Association’s brief, submitted jointly with the Pennsylvania Municipal Authorities Association (PMAA) and NACWA member the Allegheny County Sanitary Authority (ALCOSAN), argues that land application of biosolids is a highly regulated activity which qualifies as a normal agricultural operation and deserves the protection of right to farm statutes.

Ensuring that land application is considered a normal agricultural practice under right to farm laws is critical for clean water utilities because it provides land application programs with additional legal protection from lawsuits challenging the practice, similar to protections enjoyed by other agricultural fertilizers.

Briefing in the case will continue through early April, with a decision from the court possible later this year.

Challenge to Kern County Biosolids Ordinance

A hearing was held on February 5, 2015, in City of Los Angeles, et al. v. County of Kern, a California case involving Kern County’s discriminatory local land application ban (Measure E) and its long-running effort to restrict the imports of biosolids from Southern California communities for spreading on a Los Angeles-owned farm. The state Superior Court rejected Kern County's claim that the lawsuit challenging Measure E was untimely, paving the way for a full trial on the validity of the ban.

A California appellate court issued a strong legal decision  in February 2013 in support of biosolids land application, upholding an injunction against the ban and echoing arguments made by NACWA in the litigation. In July 2014, the California Supreme Court overturned  the appellate court decision on a procedural issue unrelated to the underlying legal question regarding the Kern County ban. The appellate court’s finding that the Kern County ban is illegal remains the law of the case, and the preliminary injunction against Measure E that has been in place since 2006 remains in place.

The municipal plaintiffs refiled a legal challenge to the ban in state trial court and expect to secure a new decision permanently striking down the ban. NACWA was an active participant in the original state case, providing a vital national clean water perspective to the court, and is closely tracking developments in the current litigation.

Consent Decrees

Oral Argument Held in Consent Decree Litigation

On February 12, 2015 the U.S. Court of Appeals for the Seventh Circuit heard oral arguments in United States, et al. v. Metropolitan Water Reclamation District of Greater Chicago (MWRD) in which NACWA member agency MWRD seeks to uphold a lower court decision entering a wet weather consent decree as negotiated by the utility. Environmental activist groups intervened in the case to challenge the consent decree, arguing that the combined sewer overflow controls were inadequate to achieve water quality compliance and green infrastructure projects were insufficient. A lower court dismissed  the activists’ claims, leading to an appeal.

During the hearing, the appellate court did not seem inclined to agree with the position advanced by the environmental activists that the decree was fundamentally flawed and should not be entered. However, there was discussion – and the court seemed to suggest – that the activist interveners were not harmed by the decree because they could simply issue a 60-day notice of intent to file a separate action for any violations not covered by the decree. If the court were to embrace this position in its ruling, it would be a significant expansion of third-party citizen suit rights and could limit a utility’s currently available defenses to such lawsuits.

In another surprising development during the hearing, the U.S. Department of Justice suggested that the decree does not bind EPA or the state from bringing claims for future violations. MWRD vigorously contested this suggestion, and it is unclear whether the court will address this issue in its decision.

NACWA attempted to participate in the case by submitting an amicus brief  in December 2014, but the environmental groups refused to give consent for NACWA to file the brief. NACWA then submitted a request to the court, which surprisingly declined to accept the brief on the basis that it did not add any information to what the other parties had briefed. NACWA strongly disagreed with the court’s decision because the amicus brief addressed new issues related to national policy implications. NACWA will continue to monitor the case and report any developments.

MS4 Permits/Fees

NACWA Files Brief in New York General MS4 Permit Case, Oral Argument Held

In early February 2015, the New York Court of Appeals agreed to allow the Natural Resources Defense Council (NRDC) to refile an appeal of a lower court ruling in Natural Resources Defense Council v. New York Department of Environmental Conservation, a case dealing with the appropriate regulatory requirements in municipal stormwater discharge permits. This decision follows the court’s earlier action in January 2015 to dismiss the appeal on procedural issues. Oral argument in the case was held on March 24. A decision is expected in late April or early May.

NACWA joined with other groups to file a brief  in the case on February 19, 2015 supporting the lower court’s decision and presenting a strong defense of the maximum extent practicable (MEP) standard. NACWA has long argued that the Clean Water Act (CWA) MEP standard for MS4 permits does not require strict compliance with water quality standards or the use of numeric effluent limits. NACWA has litigated multiple cases on this issue over the years, including most recently in litigation before the Maryland Court of Appeals.

Continued NACWA legal advocacy to defend the MEP approach is especially important since, in the absence of a national stormwater rule, environmental activist groups now appear to be pursuing a strategy to challenge MS4 permits at the state level across the nation in an effort to undermine the MEP standard. Success by activist groups in any one of these state challenges will provide them with a model to use for new cases in other parts of the country.

NPDES Permit Issues

EAB Denies Review in Satellite System Co-Permittee Appeal

On February 4, 2015, EPA’s Environmental Appeals Board (EAB) denied  a request for review of a municipal wastewater discharge permit that included satellite systems as co-permittees along with the utility owning the treatment plant. The ruling comes despite the fact that neither the satellite systems nor the treatment utility had requested – and in fact opposed – the co-permittee provisions.

The EAB’s decision in In Re Charles River Pollution Control District found that the satellite systems were part of the definition of a “publicly owned treatment works” (POTW) under the CWA, and EPA accordingly had the authority to include the satellites as part of the POTW permit. The EAB also determined that the satellites were not required to individually apply for inclusion in the permit, since the CWA’s “duty to apply” obligation was met when the POTW itself applied for the permit. The EAB reasoned that the information provided by the POTW in its own permit application was enough to waive the requirement for separate applications from the satellites.

NACWA submitted a brief  in the case supporting member agency Upper Blackstone Water Pollution Abatement District to challenge the co-permittee provisions, arguing that inclusion of satellite systems in the permit against the wishes of a POTW is illegal under CWA. NACWA is disappointed with the EAB’s ruling and is concerned about various aspects of the decision. The Association will engage in discussions with impacted members from Region 1 to determine appropriate next steps, including a possible appeal.

Water Transfers

NACWA Files Brief in Water Transfers Case

Briefing is now complete in Catskill Mountains Chapter of Trout Unlimited Inc., et al. v. U.S. EPA, which is EPA’s appeal of a lower court decision  that vacated key portions of the 2008 Water Transfers Rule . The rule exempts transfers of natural, untreated water for purposes of water supply or flood control from regulation under the NPDES program. If the lower court decision is upheld on appeal, many water transfers will likely require NPDES permits.

In September 2014, NACWA joined the American Water Works Association, the Association of Metropolitan Water Agencies, the National Association of Water Companies, the Water Environment Federation, and the U.S. Conference of Mayors to file an amicus curiae brief  highlighting the significant operational and regulatory challenges that permitting of water transfers would present to municipal water supply and flood management programs. The brief argues that the CWA never envisioned – nor did Congress intend for – permitting of these types of transfers since they do not result in any addition of new pollutants to receiving water bodies. The brief also argued that the NPDES program is the wrong tool to regulate such transfers, suggesting that other approaches such as federal drinking water requirements, the TMDL program, and state regulations are better suited to address concerns over water transfers.

NACWA has long supported the exemption of water transfers from the NPDES permitting scheme and was pleased to support filing of a broad municipal amicus brief in this case.

Other briefs recently filed include the NGO Brief , the New York City Reply Brief  and the EPA Reply Brief . A decision from the court could come later this year.

Other Issues of Interest

NACWA Weighs In With EPA Inspector General on Consent Decree Investigation

In February 2015, NACWA submitted  recommendations to EPA’s Office of Inspector General (OIG) outlining how the Agency can improve the effectiveness of their municipal wet weather enforcement efforts via consent decrees. The Association’s comments, developed in consultation with a number of Member Agencies, were submitted as part of an ongoing investigation being conducted by OIG.

NACWA recognizes that enforcement efforts are a powerful tool for EPA to ensure that precious resources are achieving the maximum environmental benefits. As such, the Association is hopeful that the OIG investigation – and resulting report – will embrace its recommendations and include them as key elements of all EPA enforcement actions moving forward. NACWA applauds the OIG for pursuing this investigation and interviewing a broad array of clean water agencies to determine whether EPA’s enforcement efforts are pursuing the most effective approaches – from both a cost and environmental standpoint – to address wet weather-related water quality impacts.

The Association believes that EPA can improve its enforcement efforts to maximize environmental outcome and cost effectiveness. Clean water agencies and the federal government should enter into consent decrees as stewards of the environment and partners with a joint obligation to ensure the long-term effectiveness, viability and affordability of any given plan or program.

For additional background on OIG’s investigation, see the December 12, 2014 Clean Water Current and the October 2014 Regulatory Update. OIG will issue a final report providing recommendations to EPA on how it can improve the effectiveness and efficiency of this enforcement initiative. That report will likely be released in late 2015.

NACWA thanks those members that assisted with development of the Association’s comments, and looks forward to distributing OIG’s report to membership as soon as it is released.

Lawsuit Filed Over Nutrient Pollution From Tile Drains

A municipal drinking water utility in Iowa initiated a federal lawsuit earlier this month against a number of upstream drainage districts over excess nutrient pollution. The complaint  filed on March 16, 2015 by the Des Moines Water Works alleges that the nutrients coming from tile drains operated by the defendant drainage districts is an illegal discharge of a pollutants under the CWA because the tile drains qualify as point sources and have not received an NPDES permit. The complaint also alleges a number of common law claims for nuisance and trespass, as well as Constitutional violations of unjust taking and violation of due process.

Given the significant challenge nutrient impairment is creating for municipal clean water utilities, especially nutrient discharges from unregulated nonpoint sources, this litigation opens an interesting new front in the legal battle over nutrient issues. NACWA will be closely monitoring the case with the interests of its clean water utility members in mind, and will report on any developments.

New Legal Challenge Over Phase II Stormwater Rule

Activist groups filed litigation  with the Ninth Circuit Court of Appeals in late December 2014 asking the court to order EPA to make certain changes to the existing Phase II stormwater rule. The petition from NRDC seeks EPA action in response to the Ninth Circuit’s 2003 ruling that certain elements of the Phase II rule must be amended. EPA has taken no action since 2003 to address the Ninth Circuit’s remand, so it seems likely EPA will have to make some changes to the Phase II rule in response to the recent NRDC filing.

The specific issues EPA will need to address with the Phase II rule involve how states review notices of intent (NOIs) filed by small MS4s intending to be covered under a Phase II general permit, and how states provide public notice and comment on proposed NOIs. These issues will most likely have more impacts on states than on MS4 utilities, especially if EPA addresses them via a rule change in a very narrow and targeted fashion. NACWA has had initial discussions with EPA about these potential changes, and it appears EPA is considering a targeted rulemaking effort that would amend the Phase II regulations with minimal impacts to MS4s. NACWA will continue to stay engaged with EPA as the legal process surrounding these issues unfolds.

EPA Releases New Policy on SEPs

EPA recently released a new policy document  on incorporating supplemental environmental projects (SEPs) into civil enforcement settlements, including municipal wet weather consent decrees. The updated SEP policy includes parameters on how supplemental projects may be used as part of EPA civil enforcement actions, and also includes examples of projects or actions that are not acceptable. The document replaces EPA’s previous 1998 policy on SEPs, and also incorporates by reference all of the earlier guidance and implementation decisions made since 1998.

SEPs can play an important role in consent decrees, serving as voluntary actions by a utility to potentially mitigate penalties or other decree requirements. They can take a variety of forms, including projects involving public health protection; environmental restoration; pollution reduction; use of green infrastructure; and, other actions that promote environmental and public health benefits. More information on the role of SEPs in wet weather consent decrees is available in NACWA’s Wet Weather Consent Decree Handbook. SEPs will also be addressed at the upcoming Wet Weather Consent Decree Workshop.

NACWA Test Drives EJSCREEN Tool

NACWA met with EPA staff in February to learn more about EPA’s new environmental justice screening tool, EJSCREEN, and explore many of the tool’s features and uses. EJSCREEN is intended to be an informational tool for use by EPA, states, the regulated community, and the public to screen for a variety of environmental, demographic, and economic factors that could be helpful to understand when making environmental compliance decisions. Additional information on the tool is available in the January 30, 2015 Clean Water Current.

NACWA was able to test drive EJSCREEN in early March and continues to be impressed with the overall functionality of the tool, including its possible beneficial uses to member agencies. The Association is, however, pursuing discussions with EPA on how to improve the tool, especially with regard to the type of data it provides for water dischargers. The Agency is planning a late spring or early summer public release of EJSCREEN, and NACWA will continue meeting with EPA over the coming months to better understand the tool and suggest improvements. The Association is also planning a web-based overview and demonstration of the tool for its members and will provide more details soon.

NACWA Blog - The Utility of the Future at Work: Biomethane as New Sources of Energy & Income

Guest bloggers Dale Mullen and Doug Lamb from NACWA Legal Affiliate, McGuire Woods, LLP, discuss the move toward more sustainable energy management and onsite energy development for the clean water utility of the future in NACWA’s weekly blog The Water Voice. Legal Affiliate members are always welcome to contribute to NACWA’s blog -- anyone interested in submitting a guest blog should contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it , NACWA’s Director of Marketing & Digital Media.

Upcoming Events

Join your clean water colleagues as we discuss evolving legal, legislative and regulatory environmental initiatives and trends. Mark your calendar and make your plans today for:

• National Water Policy Forum, Fly-In & Expo
  April 13 – 15, 2015, Westin Washington, DC City Center, Washington, DC
  The National Water Policy Forum, Fly-In & Expo, the anchor event of WaterWeek 2015, is presented by the NACWA, the Water Environment Federation (WEF), the Water Environment Research Foundation (WERF), and WateReuse. It will feature distinguished speakers, conference sessions, Capitol Hill visits, and regulatory roundtables.
• Wet Weather Consent Decree Workshop
  April 29 – 30, 2015, Hyatt at The Bellevue, Philadelphia, PA
  Join us for a Workshop offering intensive and insightful sessions on the current state of play in the wet weather consent decree arena. Whether your utility or client is under an existing decree, currently in negotiations with regulators or potentially subject to future enforcement, this workshop is for you. Register today!
• National Pretreatment & Pollution Prevention Workshop & Training
  May 12 – 15, 2015, Hyatt Regency Greenville, Greenville, SC
  This year’s Workshop program will focus on topics that promise to be important for pretreatment programs in the future, as well as issues that are currently affecting these programs.

NACWA Member Legal Tools

• Navigating Litigation Floodwaters: Legal Considerations for Funding Municipal Stormwater Programs  is an analysis of the types of legal issues impacting stormwater funding programs.
• Consent Decree e-Library provides the most comprehensive and searchable collection of municipal wet weather consent decree and enforcement orders.
• Wet Weather Consent Decrees: Negotiation Strategies to Maximize Flexibility & Environmental Benefit - A Handbook for Clean Water Utilities is the premier resource for municipal and utility attorneys, managers, and staff to use when dealing with federal or state enforcement actions.