ARCHIVE SITE - Last updated Jan. 19, 2017. Please visit www.NACWA.org for the latest NACWA information.
The National Association of Clean Water Agencies (NACWA) is pleased to present the Fall/Winter 2016 Legal Update, which summarizes current legal initiatives and developments since June 2016.
Legal Advocacy Insights from the General Counsel
NACWA’s legal advocacy will play an even more important role in advancing the Association’s goals in the new Trump Administration. Environmental activist groups will undoubtedly encounter roadblocks when attempting to advance their agendas with the US Environmental Protection Agency (EPA) and Congress and will, therefore, focus more resources in the courts. If the Administration tries to decrease enforcement and rulemaking as expected, there will likely be a significant rise in Clean Water Act (CWA) citizen suits filed against the EPA. In addition, environmental groups will seek to compensate for the reduction in enforcement by going after dischargers directly and the clean water municipal community will continue to be a target. Progressive states may also join forces with NGOs on key cases and attempt to fill the enforcement gap if not restricted by state law (e.g., “no more stringent than federal law” restrictions on state regulation).
In response, NACWA will track and analyze this anticipated flood of litigation and determine when and how to participate most effectively to protect our members. NACWA’s legal programming, seminars and resources will provide key analyses and strategies to fortify the clean water sector’s ability to manage the shifting legal landscape.
NACWA will also evaluate when to be more aggressive in taking the lead in legal battles over such critical issues as nutrients and the appropriate role of nonpoint sources in addressing water quality. Lawsuits can be powerful tools for change and NACWA will leverage its growing expertise in the legal field to achieve the Association’s advocacy goals.
On the enforcement front, NACWA does not expect widespread changes with the enforcement and prosecution of existing cases. The majority of personnel at EPA and the U.S. Department of Justice (DOJ) are non-political. There are hundreds of civil cases and environmental violation investigations pending, which will not be dismissed outright. With regard to existing and upcoming wet weather consent decrees, we anticipate that, as additional new political staff appointments are made at EPA and DOJ, clean water agencies will be on better footing to negotiate or renegotiate favorable terms, especially with regard to community affordability. NACWA stands ready to assist our members on consent decree issues through our Legal Affairs Committee, network of top clean water attorneys, staff expertise, and resources such as the Consent Decree Handbook and the Consent Decree e-library.
NACWA Releases Updated Legal Resources
NACWA recently released 2016 editions of two of the Association’s most popular and valuable legal resources.
Consent Decree Handbook
Whether you are new to the consent decree process, living through implementation or modification, or nearing termination, the Handbook offers something for everyone.
Stormwater Program & Fee Litigation White Paper
Both publications are free as a benefit of membership and are examples of NACWA’s continued commitment to providing its members with the most effective clean water advocacy tools.
Legal Affairs Committee Meeting
The NACWA Legal Affairs Committee will meet on February 6 from 9:00-10:00 am during NACWA’s Winter Conference Next Generation Compliance …Where Affordability & Innovation Intersect, which will be held February 4-7, 2017, in Tampa, Florida.
More details on the committee meeting will be available soon. If you are not a member of the Legal Affairs Committee, you are encouraged to join to engage in discussion on a wide array of legal issues with the potential to affect the clean water sector.
Next Hot Topics in Clean Water Law Webinar
Awaiting Decision in Blending Litigation
The US Court of Appeals for the District of Columbia Circuit held oral arguments October 21, 2016, in Center for Regulatory Reasonableness (CRR) v. EPA involving a 2013 decision by the Eighth Circuit in Iowa League of Cities v. EPA, which struck down the Agency’s efforts to illegally regulate “blending.” The current litigation challenges the Agency’s refusal to apply the Iowa League decision nationwide and its case-by-case approach to blending.
During oral arguments, the panel of three judges focused their questions on procedural issues, exploring whether the EPA’s refusal to apply the Eighth Circuit ruling is subject to judicial review and whether the issue could not simply be challenged at the permitting stage. CRR focused its arguments on the costly implications of the uncertainty created by the Agency’s refusal to consistently apply the decision, while EPA argued that even within the Eighth Circuit it may still prohibit blending where appropriate, and that permittees have the opportunity for comment and judicial review upon issuance of a permit.
Full audio of the argument is available on the court’s website. NACWA filed an amicus brief in the case in October 2015, providing a critical national utility perspective on the important issue of blending and arguing for application of the Iowa League decision nationwide. A decision in the case is possible within the next few months, and NACWA will keep the membership updated on developments.
NPDES Permit Issues
NACWA Joins California Whole Effluent Toxicity Litigation
On December 19, NACWA joined several California water organizations to file litigation challenging EPA’s efforts to impose certain testing requirements for whole effluent toxicity (“WET”) on dischargers without going through the rulemaking process required by the Administrative Procedure Act (APA).
EPA has pressured state agencies to adopt the Test of Significant Toxicity (TST), although the applicable regulations do not identify TST as an acceptable methodology, and although NACWA and other stakeholders have raised significant technical questions about the validity of TST.
The litigation will directly challenge the TST, the use of which will result in an increased cost to members to undertake the additional replicate samples necessary to reduce the likelihood of being found in violation; an increased frequency of false failures in toxicity testing; and, as a result, a higher alleged incidence of noncompliance with NPDES permits, potentially resulting in civil and even criminal liability. Furthermore, the litigation will underscore that rulemaking without notice and comment violates the APA, stifles public participation, and harms Publicly Owned Treatment Works (POTWs) as well as the public in general.
NACWA is concerned that once the TST is used in California POTW permits, it will be more broadly applied in other states. NACWA’s participation provides a national perspective on the concerns over use of the TST method, the manner in which unpromulgated guidance is being imposed, and the implications this case could have on clean water utilities nationwide. For more details on the case see NACWA’s Litigation Tracking - Southern California Alliance of Publicly Owned Treatment Works v. EPA.
Awaiting Ninth Circuit Ruling in Groundwater Conduit Theory Litigation
The appeal pending before the United States Court of Appeals for the Ninth Circuit in Hawaii Wildlife Fund v. County of Maui arises from a district court decision adopting a novel “conduit” theory to hold that migration of pollutants from a properly permitted underground injection well, through groundwater into hydrologically connected navigable waters, violates the CWA.
In July, the County of Maui filed a reply brief rejecting arguments made by the plaintiffs and the Department of Justice (DOJ) that the conduit theory arises out of the U.S. Supreme Court’s decision in Rapanos, and that a National Pollutant Discharge Elimination System (NPDES) permit is required for discharges into groundwater with a direct hydrologic connection to surface water. The County’s brief reaffirms the argument that a point source discharge is the threshold test for application of the NPDES permit program.
Because of the risk of citizen suit litigation using the district court’s conduit theory for liability under the CWA, NACWA filed an amicus brief in March urging reversal by the court. The County’s reply brief concludes the briefing in the appeal.
EPA Argues Narrative Criteria Incorporated by Reference and Enforceable Permit Terms
On October 27, the Fourth Circuit heard oral arguments in Ohio Valley Environmental Coalition v. Fola Coal Co. The case is on appeal from the U.S. District Court for the Southern District of West Virginia. The appeal arose from a decision by a federal district court that a National Pollutant Discharge Elimination System (NPDES) permit provision incorporating water quality standards by reference actually created an independently enforceable effluent limitation, compliance with which is a prerequisite for protection under Clean Water Act (CWA) §402(k). Section 402(k) establishes that compliance with a NPDES permit is compliance with the CWA and provides a shield from citizen suits (the permit shield). In reviewing the decision, the Fourth Circuit requested that EPA and West Virginia file briefs to inform the court regarding the breadth of the permit shield’s reach and application.
A three-judge panel heard the case. One judge seemed convinced that Fola had violated its permit because the boilerplate language in the permit created an enforceable condition. The other two judges appeared to disagree, believing Fola could not be held to a standard that had not yet been ascertained when the permit was issued. The Court focused on notice, whether Fola knew, or could have known, what standards it needed to meet.
Earlier in October, EPA and the State of West Virginia filed briefs at the request of the court. EPA argues in its brief that the court need not even address the question of application of the permit shield, but that instead the question “will be rendered moot” by the court’s finding that the water quality standards incorporated into the permit constituted effluent limitations. The Agency further asserts that because the district court found that Fola Coal Company was in violation of those limits, the permit shield does not apply.
By contrast, West Virginia urged reversal of the district court’s decision, arguing that cooperative federalism establishes a system whereby the federal government relies on state level experts to make determinations about how best to protect local water quality, and that the court should not substitute its judgment for the state. West Virginia further explains that a sweeping requirement to comply with state water quality standards cannot reasonably be interpreted to impose a substantive requirement, given the specific effluent limitations in the permit, and argues that it is instead an instruction to the state to impose requirements necessary to meet water quality standards.
NACWA filed a brief in April as part of a coalition of friends of the court (amici) to highlight the broad national impacts of the district court’s decision, and has also worked to educate state regulators regarding the potential consequences of the decision.
Based only on the arguments, it is anticipated that the judges will rule 2-1 to overturn the lower court decision. Full audio of the argument is available on the court’s website.
District Court Affirms EPA's Cooperative Federalism Approach in Numeric Nutrient Criteria Case
On December 15, the district court in Gulf Restoration Network v. EPA granted EPA’s motion for summary judgment on remand from the United States Court of Appeals for the Fifth Circuit. The case involves EPA's response to a petition from activist organizations requesting that the Agency develop federal numeric nutrient criteria (NNC) for the Mississippi River Basin (MRB) and northern Gulf of Mexico. EPA declined to make a necessity determination on the need for NNC and, in 2012, the activist groups sued EPA.
In 2013, the district court held that EPA must make a “yes” or “no” determination on such a petition, but the Fifth Circuit reversed, holding that EPA could decline to make a decision, as long as the Agency provides sufficient justification. The Fifth Circuit then remanded the case to the district court on the issue of whether EPA was justified in declining to make a decision. In its December 15 opinion, the court essentially found that EPA’s denial of the plaintiff’s petition was sufficiently grounded in the CWA, following the guidelines provided by the Fifth Circuit, particularly in the context of the general cooperative federalism framework of the Act and Section 303 pertaining to water quality more specifically.
NACWA has been involved in the case since 2012, when it successfully intervened to protect the interests of its municipal clean water utility members and argued against the development of NNC. The court’s decision represents a victory for the clean water community and for cooperative federalism. In its decision, the court explained that EPA’s justification of cooperation with the states was a sufficient reason to forego a formal decision in responding to the plaintiff’s request: “This Court is convinced that the Denial, which again is grounded primarily on EPA’s assessment that working in partnership with the States to reduce nutrient pollution would be a more effective approach at present, is sufficiently grounded in the statute.”
Water Quality Criteria/ Standards
NACWA Intervenes in Key Nutrient Litigation
On October 13, a federal district court in Montana granted NACWA’s Motion to Intervene in litigation challenging EPA’s approval of the state’s general nutrient variance . Montana is the first state in the nation to develop scientifically based criteria for nitrogen and phosphorus with an achievable implementation strategy via a general variance, and NACWA took action to ensure EPA’s approval of the variance is upheld.
In 2014, Montana promulgated numeric nutrient criteria (NNC) for phosphorus and nitrogen. Both EPA and the Montana Department of Environmental Quality (MTDEQ) understood that most National Pollutant Discharge Elimination System (NPDES) dischargers would be unable to meet permit limits based on the very low criteria. Thus, at the same time MTDEQ submitted the criteria to EPA for approval, the State also requested approval of a general variance from the criteria for qualifying dischargers. EPA approved both the criteria and the variance in February, 2015. In May 2016, however, an environmental activist group filed litigation against EPA challenging the approval of the variance. The Upper Missouri Waterkeeper is arguing that EPA’s approval should be overturned as arbitrary and capricious and an abuse of discretion under the Administrative Procedure Act. Without the variance, all NDPES dischargers, regardless of economic impact or technical feasibility, would be required to comply with the State’s low in-stream nutrient criteria concentrations for phosphorus and nitrogen.
If the federal district court strikes down EPA’s approval of the variance, the precedent will have immediate impacts in Montana upon such entities as NACWA Member Agency the City of Bozeman, and could severely limit or eliminate the availability of variances nationwide. A negative decision would have a chilling effect on other states that are contemplating similar approaches for addressing nutrients. It would also have impacts beyond nutrients, including within states that have already adopted extremely low water quality standards for toxics, but are using multi-discharger or statewide variances to address technical and affordability-based challenges.
NACWA’s intervention in the case secures its position as a party to the litigation to ensure that the variance approval is defended. MTDEQ , the Montana League of Cities and Towns , and several industry groups have also intervened in the litigation.
On November 7, the Court issued a briefing schedule. NACWA’s response briefs or cross-motion for summary judgment is due in April 2017. For more details on the case, see NACWA’s Litigation Tracking.
OTHER KEY CASES