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

June 17 Webinar on the Clean Water Rule, RICE & State TMDL Promulgation

The next Legal Hot Topics Web Seminar will be held on June 17 from 2:00 – 3:15 pm EDT. The webinar will kick off with a presentation on the recently released Final Clean Water Jurisdiction Rule and the implications for municipal clean water utilities as well as the likelihood of legal and Congressional action in opposition.

The webinar will also feature a presentation by David Friedland with NACWA Legal Affiliate Beveridge & Diamond on recent federal litigation over EPA’s Reciprocating Internal Combustion Engine (RICE) Rule. The litigation has resulted in legal uncertainty for clean water utilities with regard to the regulatory requirements applicable to these kinds of engines, which are often used as backup generators or for other operational purposes.

Finally, John D. Lazzaretti, an attorney with NACWA Legal Affiliate Squire Patton Boggs, will discuss a recent Ohio Supreme Court decision defining the due process requirements of state Total Maximum Daily Load (TMDL) promulgation and how NACWA members in Ohio and nationwide can utilize this positive precedent to make similar arguments.

Registration is complimentary. More information on each topic is available on NACWA’s website. Past webinar presentation slides and recordings are also available on NACWA’s website.

The next quarterly Legal Hot Topics Web Seminar will be held on September 16. Please send suggestions on topics to This e-mail address is being protected from spambots. You need JavaScript enabled to view it or to This e-mail address is being protected from spambots. You need JavaScript enabled to view it for consideration.

Legal Affairs Committee Will Convene in July at Summer Conference

The next meeting of the NACWA Legal Affairs Committee  will occur at 3:00 pm EDT on July 13, 2015 as part of NACWA’s 2015 Utility Leadership Conference & 45th Anniversary Annual Meeting in Providence, Rhode Island.

Additional information on the conference, Financing, Funding & Rates for the Future, including registration and hotel details, is available on NACWA’s website. Make plans to attend the Committee meeting for an engaging discussion of key clean water legal issues. A draft agenda for the committee meeting will be available soon.

Save the Date! 2015 National Clean Water Law Seminar to be Held November 4-6, 2015

Mark your calendars for November 4-6, 2015 for the National Clean Water Law Seminar. Designed for both clean water attorneys and utility managers, the Law Seminar examines the most important current topics in clean water law.

This year’s event will take place at the Westin Lake Las Vegas in Henderson, Nevada. NACWA will begin developing an agenda for the Seminar in July, and registration information will be available late summer. Ideas for issues to be covered at the Seminar or proposed presentation topics are always welcome – please feel free to submit suggestions to This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it , Chair and Vice Chair, respectively, of the Legal Affairs Committee, or to This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

A recap of last year’s Seminar is available here, and presentations are available on NACWA’s website.

DC Water’s Green Infrastructure Plan Gets the Green Light

On May 20, 2015, DC Water, the District of Columbia, EPA, and the U.S. Department of Justice (DOJ) announced an agreement  to modify a 2005 federal consent decree to allow for large-scale green infrastructure (GI) installations and other modifications to the Clean Rivers Project impacting the Potomac River and Rock Creek.

Under the modified agreement, by 2030 DC Water will build GI and targeted sewer separation to manage the volume of runoff produced by 1.2" of rain falling on 365 impervious acres of land. This portion of work will replace the previously-planned underground tunnel for Rock Creek.

To address discharges to the Potomac River, DC Water will also build an underground tunnel capable of holding 30 million gallons of combined stormwater and sewage. The tunnel, which will also be completed by 2030, will use gravity to allow the collected combined sewer flow to DC Water's Advanced Wastewater Treatment Plant at Blue Plains. In addition, DC Water will construct GI and targeted sewer separation to manage the volume of runoff produced by 1.2" of rain falling on 133 impervious acres of land. The GI in this area will be completed by 2027 and sewer separation will be completed by 2023.

The $100 million investment outlined in the modification is one of the largest financial commitments by a municipal clean water utility to GI and will position DC Water and the District of Columbia as a national GI leader. (See DC Water General Manager George Hawkins’ Water Voice Blog post).

The Consent Decree modification is open for public comment until July 27. NACWA will submit comments in support of the proposed modification as written.

NACWA is always willing to provide comments on proposed decree or other enforcement orders for Association members when such action would be helpful and appropriate.

Wet Weather Consent Decree Workshop Provides Invaluable Negotiation Strategies

NACWA held its second annual Wet Weather Consent Decree Workshop in Philadelphia at the end of April. Nearly 100 clean water professionals gathered to share tips for renegotiating existing decrees or negotiating new decrees to achieve the most cost-effective environmental outcomes.

Top municipal clean water experts presented on the latest trends in clean water enforcement; real world case studies; available tools; effective negotiation strategies; and, areas of evolving regulatory flexibility.

A highlight of this year’s Workshop was the panel of senior EPA officials – including both Headquarters and Regional officials – who shared their perspectives on wet weather enforcement, including insights on how regulators approach wet weather negotiations and what kinds of approaches they find most and least effective.

Presentations from the Workshop are available on NACWA’s website.

NACWA Releases Revised Consent Decree Handbook

In May, NACWA released its 2015 revised Wet Weather Consent Decree Handbook. The Handbook includes updated information on affordability, supplemental environmental projects and decrees lodged, entered or modified since release of the 2014 edition.

This resource will continue to provide NACWA members with unparalleled information, analysis, and strategies on wet weather enforcement issues including negotiation, renegotiation, implementation, and modification of wet weather enforcement orders and decrees. The Handbook along with NACWA’s online Consent Decree e-Library serve as the premier tools for municipal clean water utilities facing wet weather enforcement issues.

See Advocacy Alert 15-07 for additional information.

CURRENT CASES

Biosolids

Federal Court Dismisses Challenge to NHSM Rule

On June 3, the D.C. Circuit Court of Appeals issued a decision  in litigation over EPA’s final Non-Hazardous Secondary Materials (NHSM) Rule, dismissing challenges filed by NACWA and others to the rule. In the decision, the court rejected NACWA’s arguments that the “domestic sewage exclusion” (DSE) in the Resource Conservation and Recovery Act (RCRA) exempts sewage sludge from classification as a solid waste when incinerated. The court agreed with EPA’s position that RCRA’s definition of sludge encompasses sludge produced during the wastewater treatment process, and thus the DSE does not apply.

The NHSM Rule provides a key regulatory underpinning for EPA’s Sewage Sludge Incinerator (SSI) Rule by defining sludge when incinerated as a solid waste. NACWA challenged  the NHSM Rule as part of the Association’s overall advocacy related to SSI issues. The rule, and the June 3 decision, only impact sewage sludge that is incinerated for disposal, not sludge managed through other methods.

With the D.C. Circuit’s ruling in the NHSM case, all practical legal avenues to challenging EPA’s SSI regulations are now closed. While NACWA has been consistently advising SSI utilities to make all efforts necessary for compliance with the SSI Rule by the March 2016 compliance deadline (or earlier in some states), the decision dismissing NACWA’s challenge to the underlying NHSM Rule makes it all the more important that utilities move forward as quickly as possible to comply with the SSI Rule.

NACWA is still engaged with EPA on a number of important regulatory issues related to the SSI Rule and will keep the membership updated on any developments, but these activities are highly unlikely to impact the compliance deadline.

NACWA is extremely grateful to all the utilities that have supported the Association’s significant SSI advocacy efforts over the past five years, especially those that contributed financially to the SSI Advocacy Coalition.

Court Appears Receptive During Oral Argument in Pennsylvania Biosolids Case

On May 5, the Pennsylvania Supreme Court heard arguments 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. Based on the tenor of the arguments, the court appeared inclined to support the municipal position in the case.

NACWA, the Pennsylvania Municipal Authorities Association (PMAA) and NACWA member the Allegheny County Sanitary Authority (ALCOSAN) jointly submitted a brief  to the Pennsylvania Supreme Court arguing 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.

Arguments in favor of protection for farmers and their contractors under the Pennsylvania Right to Farm Act were well received by the Supreme Court. The Chief Justice summed up the oral argument by stating definitively that the issue at hand – inclusion under the Right to Farm Act - was a legal question to be determined by judges not juries.

The video of the oral argument is available here (third clip of May 5 arguments). NACWA is hopeful for a positive outcome in the case and will alert the membership when a decision from the court is made.

MS4 Permits/Fees

NACWA Helps Secure Stormwater Legal Victories

On April 2, a Maryland appellate court issued a decision  in a closely watched case involving the appropriate regulatory standards for municipal stormwater permits, giving NACWA and its municipal partners in the case an important legal win. The decision in Maryland Department of the Environment v. Anacostia Riverkeeper reaffirmed that the Clean Water Act’s (CWA) “maximum extent practicable” (MEP) standard for municipal separate storm sewer systems (MS4s) does not require strict compliance with water quality standards.

The New York Court of Appeals provided another legal win for the municipal stormwater community on May 5, issuing a ruling  that dismissed challenges to the state general stormwater permit program and endorsing arguments  made by NACWA and other municipal advocates in the case. In particular, the court agreed with the municipal participants in the case that the general permit does not establish an “impermissible self-regulatory system,” nor does it violate the public participation requirements of the CWA. The decision in Natural Resources Defense Council (NRDC), et al. v. New York State Department of Environmental Conservation upholds the current approach used by New York (and, by extension, many other states) in implementing general stormwater permits under EPA’s Phase II stormwater regulations, but also sets the stage for future legal battles over the Phase II program.

The New York court acknowledged, however, that legal questions have been raised regarding whether EPA and states must provide greater regulatory and public review of Notices of Intent (NOIs) and Stormwater Management Programs under EPA’s Phase II regulations. The court noted a split on this question among federal appellate courts, and highlighted a current case addressing the issue pending before the U.S. Court of Appeals for the Ninth Circuit where NRDC is seeking to make changes to EPA's Phase II stormwater regulations requiring more individualized reviews of NOIs. The New York court further suggested that the legal questions surrounding the Phase II program will ultimately have to be resolved by EPA and the federal courts – which could possibly include the U.S. Supreme Court. NACWA has already been in discussions with EPA about potential changes to the Phase II program as a result of the ongoing Ninth Circuit case, and will be closely involved in developments moving forward.

The issues involved in both the Maryland and New York cases reflect the continued legal and regulatory challenges being mounted against the current CWA stormwater regulations – especially in the absence of further EPA work on a national stormwater rule – and highlight the importance of NACWA’s continued engagement on these issues in the legal arena. Additional information on both cases is available on the Association’s Litigation Tracking page. See also May 8 Clean Water Current.

TMDLs

Awaiting Decision in Chesapeake Bay TMDL Appeal

The U.S. Court of Appeals for the Third Circuit has yet to issue a ruling 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 upheld EPA’s inclusion of nonpoint sources as part of the TMDL. The lower court 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. The Association and its municipal partners filed a brief  in the appeal supporting the lower court decision (as did a group  of major U.S. cities).

A decision in the case is expected at any time, and NACWA will keep members informed of any developments.

Water Quality Criteria/Standards

Appeals Court Issues Win in Key Nutrients Litigation

The U.S. Court of Appeals for the Fifth Circuit issued a much anticipated decision  on April 7 in litigation over nutrient regulation in the Mississippi River Basin (MRB), striking a blow to efforts by environmental activist groups to require federal numeric nutrient criteria (NNC) for the entire MRB.

The ruling in Gulf Restoration Network, et al. v. EPA provides EPA with significant discretion over how it may respond to an activist group petition requesting federal NNC, finding that EPA can decline to make a determination as long as the Agency provides sufficient justification. The Fifth Circuit remanded the case back to the district court to decide whether EPA’s explanation for why it declined to make a determination on federal NNC was legally sufficient.

The decision marks an important win for the Agency and for NACWA, which has opposed federal NNC during the litigation. See NACWA’s Litigation Tracking page for more details on this case.

Issues of Interest

NACWA Submits Environmental Justice Comments; EPA Releases EJSCREEN Tool

NACWA submitted comments on June 11 to EPA on the Agency’s draft 2020 environmental justice (EJ) strategic plan , applauding EPA’s focus on EJ but encouraging greater consideration of community financial capability and affordability issues in EJ initiatives. EPA released the draft EJ 2020 Action Agenda Framework in April to map out the key EJ actions the Agency intends to take over the next several years.

NACWA’s comments note that while EPA includes economically distressed communities as among the primary targets of EJ efforts, it is these same communities that bear a disproportionate share of the costs and rate increases related to federally-mandated clean water investments. This is particularly true when it comes to wet weather consent decrees and enforcement actions. NACWA’s comments highlight this contradiction in EPA’s EJ strategy, and suggest some specific language changes in the draft Framework to address financial capability and affordability concerns.

In a related development, EPA also recently released a public version of its EJSCREEN tool. As NACWA has previously reported, 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. EPA is committed to making continual improvements to EJSCREEN, and any members with feedback on the tool are encouraged to contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

NACWA Concerns Addressed in Final Clean Water Rule

The EPA and the U.S. Army Corps of Engineers released their final Clean Water Rule, often referred to as the Waters of the United States or WOTUS rule, on May 27.

The rule has consumed much of EPA’s time over the last several years and has been the focus of intense controversy from a range of stakeholders and Members of Congress. It will become effective 60 days after publication in the Federal Register, which will occur in coming weeks.

Since the Agency first began work on the rule, NACWA has focused its attention on maintaining the current exemptions for wastewater treatment systems and ensuring that municipal separate storm sewer systems (MS4s), green infrastructure and recycled water projects are not inadvertently regulated as jurisdictional waters. The final definition of ‘Waters of the United States’ maintains the key elements NACWA has fought to preserve and addresses a number of the concerns the Association raised in its comments.

Advocacy Alert 15-09 provides more detail on the content of the final rule. In addition, the next Legal Hot Topics Web Seminar on June 17 from 2:00 – 3:15 pm EDT will feature a presentation on the rule and the implications for municipal clean water utilities as well as the likelihood of legal and Congressional action in opposition.

Media Attention on Wipes Continues; NACWA to Comment on FTC Settlement

The problems utilities experience from wipes have continued to receive media attention. The Guardian published an article on May 26 that examined the wipes issues in detail, with a focus on NACWA’s views and the problems experienced by the New York Department of Environmental Protection, a NACWA Member Agency. The Miami Herald also published a story on May 26 about wipes problems at another NACWA Member Agency, Miami-Dade County.

Advertising Age focused on a proposed consent agreement announced on May 18 between the Federal Trade Commission (FTC) and wipes manufacturer Nice-Pak Products, Inc., which will be prohibited from advertising its wipes as flushable unless it can substantiate that the product is safe for sewer and septic systems.

The settlement agreement proposed by FTC states that Nice-Pak must provide “tests, analyses, research, studies, or other evidence” to show that the product “disperses in a sufficiently short amount of time after flushing to avoid clogging, or other operational problems in, household and municipal sewage lines, septic systems, and other standard wastewater equipment; and substantially replicate the physical conditions of the environment in which the Covered Product is claimed… to be properly disposed of.”

The FTC investigation was launched because a “flushable” product – made by Nice-Pak until last year for retailers including Costco, CVS, and Target – was shown in tests by wastewater utilities to not break down within a reasonable time. In Advocacy Alert 15-10, NACWA provided more details about the FTC proposed consent agreement and its ramifications for the Association’s collaborative work on wipes. Public comments on the proposed agreement will be accepted until June 19, and NACWA plans to submit supportive comments.

Any questions related to wipes should be directed to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Environmental Group Sues California Utility for CWA Violations Due to Exfiltration

On June 2, 2015, a California environmental activist group filed suit  against a clean water utility in southern California alleging a number of CWA violations, including one based on “[e]xfiltration caused by pipeline cracks and other structural defects in the collection system results in discharges to adjacent surface waters via underground hydrological connections.” In other words, sewage escaping from pipes in the collection system enters groundwater, which then transports the sewage to surface waters and results in a discharge of a pollutant without a permit in violation of the CWA.

NACWA is aware that this theory of liability has been advanced before against clean water utilities, especially in California, although to the Association’s knowledge it has never been directly litigated with regard to leaks from collection systems. NACWA is concerned that this may be an emerging theory of liability in environmental citizen suits, and will be closely monitoring the new case. Members that are aware of any similar challenges against clean water utilities are encouraged to contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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.