» Update Archive

The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Fall 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 the Association’s legal advocacy efforts can be directed to NACWA’s General Counsel & Director of Public Affairs This e-mail address is being protected from spambots. You need JavaScript enabled to view it (202/530-2758).

UPCOMING AND PAST EVENTS

Save the Date - Legal Affairs Committee Meeting

The NACWA Legal Affairs Committee will meet on February 22, 2016 from 10:45-11:45 am PST during NACWA’s 2016 Winter Conference, Back to Basics . . . Will Compliance Concerns Derail Efforts to Innovate?, which will be held February 21 – 24, 2016, at the Westin San Diego.

The Winter Conference program will explore the increasing regulatory requirements and external drivers that both present compliance challenges and impact the water sector’s ability to move in the direction of the utility of the future. The program  will also feature and our first-ever Smart Utility Forum, a discussion among technology/solution providers and utility managers on the role of ‘big data’ and how real-time decision-making and data analysis can help utilities better address the growing list of requirements they must meet.

If you are interested in joining the Legal Affairs Committee, please sign up on NACWA’s website.

Law Seminar Addresses Key Clean Water Act Issues

A record crowd of over 130 individuals attended NACWA’s 2015 National Clean Water Law Seminar November 4-6 in Henderson, Nevada. John C. Cruden, the Assistant Attorney General for the Environment & Natural Resources Division (ENRD) of the U.S. Department of Justice (DOJ), keynoted this year's Seminar. Serving as the Nation's top federal environmental attorney, Cruden is charged with advancing ENRD's mission to safeguard and enhance America’s environment through litigation in federal and state courts. Cruden highlighted some of the most critical legal issues impacting clean water at a national level. While acknowledging that DOJ may often be engaged in adversarial legal proceedings with clean water agencies, he expressed deep appreciation for the efforts of utilities to protect the environment.

This year’s Law Seminar featured several new topics including: Stormwater Primer; The Era of Big Data: Opportunities & Legal Considerations; Stealth Regulation: A Mountain or a Molehill?; Get Off My Lawn! The Role of Clean Water Utilities on Private Property; and Empowering Innovation: The Role of Clean Water Lawyers in Advancing the Utility of the Future.

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

Legal Hot Topics Web Seminars

NACWA hosted Hot Topics in Clean Water Law web seminars on June 17 and September 16. The seminars addressed several recent rules - and pending litigation on the rules - including the Clean Water Jurisdiction, the Clean Power Plan and the Reciprocating Internal Combustion Engine (RICE) Final Rules.

The seminars also covered a recent Ohio Supreme Court decision defining the due process requirements of state Total Maximum Daily Load (TMDL) promulgation and the Great Lakes provision in the Senate’s FY16 appropriations package for the US Environmental Protection Agency (EPA) (Sec. 428 of S. 1645 ) which would eliminate all sewer overflows to the Great Lakes and eliminate the use of blending as a wet weather management tool.

A recording of the seminars, presentation slides, and speaker bios are available on NACWA’s website.

Mark your calendars for the next Legal Hot Topics seminar to be held on December 16, 2015.

CURRENT CASES

Blending

NACWA Files Brief in Blending Litigation

NACWA filed an amicus curiae brief on October 30 in litigation before the U.S. Court of Appeals for the District of Columbia Circuit, pushing back against EPA’s regulatory approach to blending and arguing that a previous federal appellate court ruling on the issue should be applied nationwide. The Association is participating in this case due to the importance of blending for many NACWA members and the leading role it has played in the blending debate over the past two decades.

NACWA’s brief in Center for Regulatory Reasonableness (CRR) v. EPA provides a critical national utility perspective on the important issue of blending. It highlights why NACWA believes the 2013 U.S. Court of Appeals for the Eighth Circuit decision in Iowa League of Cities v. EPA - which struck down EPA’s efforts to regulate blending through application of secondary treatment limits internal to the treatment plant before the final point of effluent discharge - should be applied nationally by EPA. The brief further articulates the Association’s position that blending, when done consistent with the design and operation of a treatment plant, is not a bypass.

Consent Decrees

Federal Appeals Court Upholds Chicago Consent Decree

On July 9, the U.S. Court of Appeals for the Seventh Circuit issued a strong legal victory for NACWA member agency the Metropolitan Water Reclamation District of Greater Chicago (MWRD) and for the clean water community at large. The court upheld the wet weather consent decree as negotiated by the parties in United States, et al. and Alliance for the Great Lakes, et al. v. Metropolitan Water Reclamation District of Greater Chicago over the objections of environmental activist groups.

The 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.

NACWA has long supported the position that activist groups should not be able to alter consent decrees negotiated between utilities and federal and state regulators. The Seventh Circuit decision 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.

NACWA Comments Support DC Water Consent Decree

NACWA submitted comments on July 16 to DOJ supporting a proposed modification to the consent decree for Member Agency DC Water. The Association’s comments praised the proposed modification, which was lodged with the court in late May and is currently undergoing a public review period, as a more innovative, cost-effective, and beneficial path forward for the District of Columbia, its residents, and the environment. In particular, the comments support the modification’s hybrid approach to controlling wet weather flows through use of both green infrastructure (GI) and gray infrastructure.

NACWA’s comments endorse a five-year extension to the decree to allow for greater use of GI, as well an innovative adaptive management approach to ensure that the GI is used in the most effective manner possible to achieve the desired water quality benefits. Additionally, NACWA strongly supported the proposed modification’s commitment to employing local residents to help install and maintain the GI projects over time.

MS4 Permits/Fees

NEORSD Achieves Major Legal Victory on Stormwater

The Ohio Supreme Court issued a ruling September 15 in the Northeast Ohio Regional Sewer District (NEORSD) v. Bath Township, et al. case upholding NACWA Member Agency NEORSD’s municipal stormwater management program and fee, marking a major legal victory.

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. In the 5-2 decision, the state Supreme Court overturned a lower appellate court and held that NEORSD’s regional stormwater management program and the attendant fee structure are authorized by statute and by the District’s charter.

NACWA joined with the Association of Ohio Metropolitan Wastewater Agencies (AOMWA) to file an amicus curiae brief   in the case supporting NEORSD as part of the Association’s aggressive advocacy to defend stormwater programs.

The court’s decision not only affords legal recognition and protection for NEORSD’s stormwater management program, but also provides positive precedent that will benefit utilities managing stormwater nationwide. More information on the decision can be found in Advocacy Alert 15-16.

NPDES Permit Issues

Whole Effluent Toxicity Testing Litigation

On November 5, NACWA filed an amicus curiae brief  in Southern California Alliance of Publicly Owned Treatment Works v. EPA, a case involving application of certain testing requirements for whole effluent toxicity (“WET”) and the ability of EPA to indirectly impose requirements on dischargers by pressuring state agencies to adopt EPA’s desired policies without going through the rulemaking process required by the Administrative Procedure Act.

Despite the fact that EPA has issued no further guidance beyond a 2010 draft on the Test of Significant Toxicity  (TST) to evaluate WET tests – and has failed to seek formal public comment on the procedure – EPA Region 9 has continued to push for its use in permits, particularly in California. NACWA’s brief outlines the significant scientific, regulatory, and legal concerns with the use of TST, with particular attention on EPA’s attempts to impose this test method without going through the required public notice-and-comment procedures.

EPA’s efforts to pressure the state into using the TST approach without the benefit of proper public review is a prime example of federal regulatory overreach, and this litigation has provided an opportunity for NACWA to respond in a legal context. NACWA’s brief also provides a national perspective on the concerns over use of the TST method and the implications this case could have on clean water utilities nationwide.

TMDLs

NACWA Helps Secure Key Litigation Victory for Watershed Approach

NACWA and its municipal partners helped secure a significant litigation victory on July 6 when a federal appellate court upheld the final TMDL for the Chesapeake Bay, including its use of a watershed approach requiring nutrient reductions from nonpoint sources. The ruling from the U.S. Court of Appeals for the Third Circuit in American Farm Bureau, et al. v. EPA dismissed challenges to the final TMDL from agricultural and nonpoint dischargers and affirmed a lower court ruling upholding the TMDL. NACWA played a key role along with other municipal partners in the case as an intervenor to help defend  the watershed approach.

The Third Circuit’s decision rejected arguments from the agricultural challengers that TMDLs cannot include specific allocations for nonpoint sources. The court acknowledged that the language on TMDLs in the Clean Water Act (CWA) is ambiguous, but concluded that including nonpoint allocations was both reasonable and lawful. In doing so, the court also recognized the important role of a watershed approach in equitably addressing water quality impairment concerns.

The Farm Bureau has asked the U.S. Supreme Court to review the Third Circuit ruling; if the Supreme Court accepts the case, NACWA will participate to help defend the lower court decision.

More analysis of the decision is available in Advocacy Alert 15-13 , and NACWA’s Press Release highlighting the importance of the ruling.

Water Quality Criteria/Standards

Federal Appeals Court Stays Clean Water Rule

The U.S. Court of Appeals for the Sixth Circuit issued an order October 9 staying implementation of EPA’s Clean Water Rule. This stay applies nationwide and means that the new rule is no longer in effect anywhere in the country. The stay will remain at least until the Sixth Circuit determines if it has jurisdiction over the various legal challenges that have been filed against the rule. NACWA will continue to track and report developments.

Issues of Interest

Inspector General Report Criticizes EPA Wet Weather Enforcement

On September 16, EPA’s Office of Inspector General (OIG) released a report, EPA Needs to Track Whether Its Major Municipal Settlements for Combined Sewer Overflows Benefit Water Quality, that highlights needed changes in how EPA approaches municipal wet weather enforcement actions. Specifically, the report notes that EPA must improve tracking and reporting on how the results of wet weather enforcement initiatives and consent decrees are leading to fewer sewer overflows and resulting improvements to water quality in receiving waters.

NACWA provided significant input  to OIG during the investigation, explaining that wet weather consent decrees are among the most expensive public investments a community will ever make, and highlighting the importance of ensuring these expenditures can be tied to specific, measurable environmental improvements. The report recognizes the financial impact of these projects and echoes NACWA’s position that EPA must do a better job of ensuring these public funds lead to actual water quality improvements.

For more information on OIG’s recommendations and how to best utilize the report, see Advocacy Alert 15-17. NACWA also issued a Press Release.

Preproposal Comments on Phase II Stormwater Remand Rule

NACWA filed pre-proposal comments  October 2 with EPA on the upcoming rulemaking that will make changes to the Phase II municipal stormwater program. The Association noted that the proposal should be as narrowly tailored as possible and should not attempt to define the “maximum extent practicable” (MEP) standard for municipal stormwater dischargers. NACWA also encouraged EPA to ensure that any changes to the Phase II program do not significantly change the current Phase II regulations or impose additional administrative burdens on the municipal stormwater community.

The Agency recently entered a settlement agreement with environmental activist groups establishing a schedule for the rulemaking, which includes a deadline of December 17, 2015 for a proposed rule and November 17, 2016 for a final rule. NACWA will continue to engage with EPA, and welcomes any member feedback that will inform the Association’s response during the public comment period on the proposed rule.

NACWA Convenes National Stormwater Advocacy Network

Earlier this year NACWA formed the National Stormwater Advocacy Network (NSAN) based on feedback received from stormwater associations and organizations around the country. These groups indicated that there was not a sufficiently coordinated effort to provide feedback on, and ultimately influence, national policy-making on stormwater issues. The NSAN was created to address this need.

The Network provides peer-to-peer interaction and builds on the work of State and regional clean water groups as part of an ongoing collaboration on important national and regional issues. The NSAN allows for broad engagement by the public sector on advocacy issues and coordinates closely with NACWA's Stormwater Management Committee to help shape policies in Congress, EPA, at other state, regional and federal agencies and in the Nation’s courtrooms. A recent area of focus for the NSAN is the upcoming Phase II municipal stormwater rulemaking.

Please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it if you would like to get involved in the NSAN.

Final Water Quality Standards Rule Contains Several Key Changes

On August 5, EPA signed the final Water Quality Standards Rule. NACWA submitted comments in January 2014 on the proposed rule.

While most changes in the final rule are minor clarifications of intent, there are a number of more significant changes to key sections based on comments EPA received. EPA’s website provides a redline comparison of the proposed and final regulatory language.

While the rule, in theory, applies only to states and their development and implementation of their water quality standards programs, several elements of the rule will have impacts for permittees, as well. The final rule contains revisions to six areas: 1) Administrator’s Determination; 2) Highest Attainable Use; 3) Triennial Reviews; 4) Anti-Degradation; 5) Variances; and, 6) Compliance Schedules.

At this time it is unclear whether the Agency plans any additional outreach, webinars, etc. to explain the content and impact of the rule. NACWA will alert the membership to any developments. For more details on the rule, see Advocacy Alert 15-15 .

Final Rule Requires E-Reporting of NPDES Monitoring Information

The EPA’s Office of Enforcement & Compliance Assurance (OECA) finalized the National Pollutant Discharge Elimination System (NPDES) e-Reporting Rule on September 24. The final rule requires that NPDES regulated entities provide monitoring information electronically, rather than via paper reports as was done previously.

The Agency will implement the requirements in two phases, with Phase I beginning one year after the effective date of the final rule, and Phase II beginning 4 years thereafter. Discharge Monitoring Reports (DMRs) will need to be electronically filed with EPA, or authorized NPDES programs, within Phase I. Additionally, those permitted under the Federal Biosolids Program will be required to submit their Sewage Sludge/Biosolids Annual Program Reports directly to EPA as part of Phase I. Electronic submission of the remaining reports will begin five years after the effective date of the final rule, in Phase II.

The Association submitted comments on the original proposal in December 2013, as well as comments  on the subsequent supplemental notice in January 2015. NACWA’s comments were based on feedback from Member Agencies affected by these changes. EPA lengthened the overall implementation period in the final rule, heeding NACWA’s comments, which pointed out that the roughly two years originally allotted for complete rule compliance was an overly aggressive timetable and would have put many permittees at risk for non-compliance. For more detail on the rule, see the September 25 edition of the Clean Water Current.

NACWA Comments on EPA Proposed Enforcement Priorities

On October 14, NACWA filed comments  on EPA’s proposed national enforcement priorities for fiscal years 2017 – 2019, expressing concern over the Agency’s continued focus on municipal wet weather enforcement. The comments noted that a focus on municipal wet weather issues without addressing other sources of water quality impairment – especially nonpoint source runoff – will fail to achieve meaningful water quality improvements. This is particularly problematic given the significant investments that many municipal clean water utilities are required to make as a result of wet weather enforcement actions.

NACWA’s comments also highlighted the recent EPA Inspector General report on the Agency’s wet weather enforcement program (see above), which calls on EPA to improve tracking and reporting on the degree to which water quality benefit is resulting from wet weather enforcement initiatives and consent decrees in the wet weather arena. NACWA further noted that the Association was encouraged by EPA’s embrace of adaptive management and the consideration of financial capability in the proposed enforcement document, but highlighted the need for EPA to take a more collaborative approach with communities in addressing affordability concerns. EPA is expected to finalize the enforcement initiatives sometime next year.

NACWA Supports CWA Citizen Suit Reform Legislation

On August 6, NACWA submitted a letter of support  for proposed legislation, which would make responsible and needed reforms to the CWA’s citizen suit provision. The proposed bill, introduced by Rep. Duncan Hunter (R-CA), would help curb current abuse of the citizen suit provision while still preserving these suits as an important tool under the CWA.

The proposed bill would: 1) establish a maximum amount of total awarded attorney’s fees based off of local markets and the proportion of successful claims in each case; 2) clarify the definition of state and federal government “diligent prosecution” of alleged violations so that governments are able to exercise their enforcement authority; and, 3) allow for standard affirmative defenses to the Clean Water Act similar to those provided in other federal environmental statutes. These narrowly tailored amendments would help prevent meritless litigation that costs clean water agencies and communities millions of dollars in legal fees and settlements.

The Association urges interested members to send letters of support to Rep. Hunter endorsing the legislation. Members are invited to use the NACWA letter of support as a template.

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.