Clean Water Act Procedural Issues
- Sackett v. EPA (Appeal to U.S. Supreme Court examining whether the Clean Water Act allows for pre-enforcement judicial review of EPA administrative orders)
Clean Water Act/Endangered Species Act
- Catskill Mountains v. NYC Catskill Mountains v. NYC (appeal of requirement for NPDES permit for interbasin transfer of natural, untreated water)
Total Maximum Daily Loads
Water Quality Criteria/Standards
- Gearhart v. EPA(consent decree regarding EPA’s Clean Water Act biosolids regulations)
Permit Shield Defense
Effluent Limitations Guidelines
Clean Water Act Jurisdiction
U.S. v. Board of County Commissioners of Hamilton County, Ohio, No. 1:02-CV-00107 (8/23/05)
A ruling was released in October 2007 by the U.S. Court of Appeals for the Sixth Circuit in the case of U.S. v. Board of County Commissioners of Hamilton County, Ohio, which found that attorneys’ fees were properly award in a contested citizens’ suit case brought under the Clean Water Act (CWA). The litigation involved an appeal by NACWA member agency the Metropolitan Sewer District of Greater Cincinnati (MSDGC) of a ruling by the U.S. District Court for the Southern District of Ohio that the Sierra Club was a “catalyst” to MSDGC entering a consent decree, and the award to Sierra Club of $1 million in attorneys’ fees under the CWA’s citizen suit provision, §505(d). NACWA filed an amicus curiae brief in support of MSDGC before the Sixth Circuit in February 2006 arguing that the catalyst theory has been soundly rejected by the U.S. Supreme Court and that the Sierra Club could not be found as a “prevailing or substantially prevailing party” under the CWA because Sierra Club not only opposed entry of the decree but also was not a party to the decree. Unfortunately, the appellate court disagreed with this argument and issued a decision upholding the award of attorneys’ fees despite the fact that the Sierra Club was not a party to the consent decree. The three-judge panel was split 2-1 on the ruling, with one judge writing an extensive dissent against the award of the fees and endorsing many of the arguments made in the NACWA brief.
The City of Cincinnati filed a petition on November 1, 2007, for an en banc rehearing of the panel’s decision; however, the parties notified the court on November 14, 2007, that they reached a settlement agreement and that the petition will be withdrawn. No further action is expected in this case. NACWA is disappointed with the Sixth Circuit opinion and is concerned that the split 2-1 decision may set a precedent for future awards of attorneys’ fees to citizen groups not directly involved in consent decrees. The Associations will continue to track other awards of attorneys’ fees under the CWA and advocate against improper award of such fees.
United States Environmental Protection Agency v. Defenders of Wildlife
The U.S. Supreme Court issued a major environmental ruling in June 2007 in U.S. Environmental Protection Agency (EPA) v. Defenders of Wildlife, embracing an argument made by NACWA when it found that the Endangered Species Act (ESA) does not trump the Clean Water Act (CWA) on issues of delegating National Pollutant Discharge Elimination System (NPDES) permitting authority to the states. In making its ruling, the Court noted that the CWA “commands that the EPA “shall” issue a permit whenever all…exclusive statutory prerequisites are met,” and further stated that adding ESA requirements on top of the CWA is inappropriate because reading the ESA so broadly “would thus partially override every federal statute mandating agency action by subjecting such action to the further condition that it pose no jeopardy to endangered species.” This reasoning parallels the arguments NACWA put forth in its February 2007 amicus curiae brief, which asserted that the CWA lays out several factors EPA must consider when delegating NPDES authority, and ESA considerations are not among the permitted statutory considerations. NACWA also put forth in its brief that although Congress enacted the ESA after the CWA was passed, the ESA was never intended to supersede the CWA. The Court picked up on this reasoning, and stated that “we will not infer a statutory repeal unless the later statute expressly contradict[s] the original act or unless such a construction is absolutely necessary . . . in order that [the] words [of the later statute] shall have any meaning at all.” In this case, the Court determined that the ESA did not repeal or alter the requirements of the CWA, nor did Congress intend it to. See Legal Alert 07-04 for a more detailed analysis of the decision. The Court accepted the case in early January 2007 after EPA appealed a decision by the U.S. Court of Appeals for the Ninth Circuit, which held that EPA improperly delegated NPDES permitting authority to the State of Arizona because ESA requirements were not sufficiently considered.
- Supporting Petition for Cert. to Supreme Court in Arizona NPDES/ESA Case, 9/2006
- Denial of Rehearing in Arizona Permit Withdrawal Case, 6/2006
- U.S. Government Petition for Cert. to Supreme Court in Arizona NPDES/ESA Case, 10/2006
- Arizona and Western States Amicus Brief, 11/2006
- U.S. Supreme Court Order Granting Cert, 01/05/2007
- NACWA Amicus Brief to Supreme Court, 02/20/2007
- EPA Merits Brief, 02/20/2007
- National Association of Home Builders Merits Brief, 02/20/2007
- Federal Water Quality Coalition Amicus Brief, 02/22/2007
- U.S. Supreme Court Opinion, 06/25/2007
Cities of Annandale and Maple Lake (Cities) NPDES/SDS Permit Issuance
NACWA won a major legal victory in May 2007 when the Minnesota Supreme Court ruled in the case of Cities of Annandale and Maple Lake (Cities) NPDES Permit Issuance that the Minnesota Pollution Control Agency (MPCA) may use an “offset” analysis when issuing an NPDES permit for a new wastewater treatment plant discharging into an impaired water body. (See Legal Alert 07-03 for more information.) The ruling overturns a 2005 decision of the Minnesota Court of Appeals, which held that MPCA could not issue an NPDES permit for the cities to discharge to a water body that does not meet water quality standards. MPCA had issued the permit based on a finding that reductions resulting from upgrades at another nearby POTW would have more than offset the new discharge. The lower court held that consideration of such offsets was improper. The case was appealed to the Minnesota Supreme Court, and NACWA filed a brief in December 2005 at the request of its Minnesota members which supported the state agency’s interpretation of the federal rule on permitting new discharges. The court’s ruling embraces NACWA’s reasoning and represents a significant victory for ensuring that states have the power to make NPDES permitting decisions that are equitable and environmentally sound.
Catskill Mountains Chapter of Trout Unlimited, Inc. (TU) v. City of New York (City)
The U.S. Supreme Court announced in February 2007 that it would not grant certiorari to review an appeals court decision, City of New York v. Catskill Mountains Chapter of Trout Unlimited, dealing with interbasin water transfers. NACWA filed a brief with the Court in January 2007, supporting a request by member agency the New York City Department of Environmental Protection (NYCDEP) for review of the decision from the U.S. Court of Appeals for the Second Circuit. The Second Circuit held that NYCDEP must obtain a NPDES permit for transfers of natural, untreated water between two of its reservoirs. The Supreme Court’s refusal to hear the case puts an even greater onus on EPA to clarify the appropriateness of NPDES permits for water transfers in its forthcoming water transfer rule. The rule is expected to clarify that transfers of untreated water like those carried out by NYCDEP are not subject to the NPDES permitting program. NACWA will continue to work with NYCDEP and other members on this issue and will circulate EPA’s transfer rule for review and comment when it is released.
- June 9, 2004 City of New York Opening Brief
- NACWA June 21, 2004 Amicus Brief
- Motion for Leave to File Amicus Brief
- June 21, 2004 Colorado-New Mexico Amicus Brief
- NAFSMA, SFWMD June 21, 2004 Amicus Brief
- August 6, 2004 NYC Reply Brief
- August 2005 NYC Proposed Supplemental Brief on New EPA Memorandum on Interbasin Transfers
- 11/05 Trout Unlimited Supplemental Brief
- Second Circuit's 12/2/05 Request for Letters on Variances
- Letter Submitted by Plaintiffs-Appellees 12/15/2005
- 12/16/05 Letters to Second Circuit Re: Variances from WQS
- NYC 12/16/05 Letter on Variances
- NACWA 12/16/05 Letter on Variances
- EPA June 7 2006 Proposed Rule
- June 13, 2006 Decision
- June 27, 2006 Petition for Rehearing
- NY STATE DEC State Pollutant Discharge Elimination System (SPDES) DISCHARGE PERMIT
- SPDES PERMIT FACT SHEET: Wastewater Data, Receiving Water Data, and, Permit Limit Derivation
- August 25, 2006 Rehearing Denial by Second Circuit
- NYC Petition for Certiorari, 11/20/2006
- NACWA Amicus Brief to U.S. Supreme Court, 01/26/07
- New York State Brief in Opposition, 01/26/07
- Brief in Opposition of non-New York State Respondents, 01/26/07
- Colorado/New Mexico Amicus Brief, 01/26/07
- Florida Water Management District Amicus Brief, 01/26/07
- Court Order on Attorney’s Fees, 6/9/2008
Sierra Club v. EPA
NACWA has learned through communication with EPA in late 2006 that the Agency had decided not to reopen its final regulation for other solid waste incineration units (OSWI) under the Clean Air Act (CAA) § 129 to cover sewage sludge incinerators (SSIs). EPA had announced in June 2006 (71 Fed. Reg. 36,726) that it was considering revising the final OSWI rule to include coverage of SSIs. NACWA submitted comments in August 2006 strongly opposing this approach and arguing that SSIs could not be regulated as OSWI under § 129 of the CAA because EPA had already determined they would be regulated as separate area sources under CAA § 112. See Fed. Reg. 23430, 23460 (April 24, 2000). EPA’s decision not to reopen OSWI, which was published in the Federal Register on January 22, 2007, represents a significant victory for NACAW’s advocacy efforts on SSIs.
However, in early 2009, NACWA learned that EPA was reconsidering the classification of SSIs and was once again considering listing SSIs under CAA §129. NACWA is currently engaged in aggressive advocacy on this issue.
Friends of the Earth v. EPA
The U.S. Supreme Court declined review in January 2007 of Friends of the Earth v. EPA, an April 2006 decision by the U.S. Court of Appeals for the District of Columbia that all total maximum daily loads (TMDLs) for the Anacostia River must be expressed in daily terms, not in monthly or seasonal averages. As a result of the Supreme Court’s action, the D.C. Circuit ruling will stand, and EPA is directed to develop new TMDLs for the Anacostia River in accordance with the appeals court decision.
NACWA filed a joint brief with the Wet Weather Partnership (WWP) in August 2006 supporting the request by member agency DC Water and Sewer Authority for high court review of the D.C. Circuit ruling. NACWA is disappointed with the Court’s decision not to review the case. A follow-up litigation to this case, Anacostia Riverkeeper v. EPA, was filed in 2008. NACWA has also intervened in that case and information can be found on the Active Cases section of the Litigation Tracking page.
Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock)
NACWA won a key victory in 2005 when the Circuit Court for the City of Richmond, Virginia issued a favorable decision in CBF v. Town of Onancock (Onancock). CBF filed its request in April 2006, but the court has taken no action on it, thus sustaining a key victory for NACWA and the Virginia Association of Municipal Wastewater Agencies (VAMWA). In its decision, the court agreed with the position expressed by NACWA and VAMWA in an April 2005 amicus curiae brief – that the Virginia Department of Environmental Quality (VDEQ) had the discretion not to impose numeric water quality-based effluent limitations when reissuing Onancock’s NPDES permit pending TMDL development. The court’s decision is valuable to NACWA members in Virginia, and helpful precedent for agencies facing pre-TMDL permitting and phased TMDL implementation issues in other states.
Pennsylvania Municipal Authorities Association (PMAA) v. EPA
In 2005, the D.C. Circuit Court of Appeals affirmed a lower court’s November 2004 decision to dismiss a legal challenge to EPA Region 3, 4, and 6’s anti-blending policies. In Pennsylvania Municipal Authorities Association (PMAA) v. EPA, the lower court held that Regional policies are not “final agency actions” that can be challenged in court.
District Court Documents:
Cities of Burbank & Los Angeles v. State Water Resources Control Board
The California Supreme Court issued a ruling in April 2005 in Cities of Burbank & Los Angeles (Cities) v. State Water Resources Control Board (Water Board). In the case, the Cities appealed their National Pollutant Discharge Elimination System (NPDES) permit limits for toxicity, alleging that the Water Board failed to consider economic factors as required by California law when setting the permit limits. The Water Board defended the permits, asserting that because the permit limits were implementing a federal toxicity standard, cost considerations are precluded under the Clean Water Act (CWA). NACWA filed a May 2004 amicus brief to support the Cities, arguing that states should adopt clear “translators” for converting narrative water quality standards (WQS) into numeric permit limits, and advocating the use of compliance schedules to phase in stringent permit limits.
In its April ruling, the Court clarified that the Water Board may consider economic factors when imposing permit limits more stringent than federal WQS, but may not consider economic factors when setting permit limits to meet federal WQS. The Court remanded the case to the lower court to determine whether the permit limits were “more stringent” than federal WQS.
Edison Electric Institute et al. v. EPA
The D.C. Circuit Court of Appeals issued a ruling in December 2004 in Edison Electric Institute v. EPA. The court’s decision upholding the chronic WET test methods was detailed for the membership in Legal Alert 04-11.
Missouri Coalition for the Environment v. EPA
On December 27, 2004 a Missouri federal district court entered a consent decree and settlement agreement between EPA and the Missouri Coalition for the Environment (MCE), thereby resolving the litigation over EPA’s failure to correct several allegedly deficient Missouri water quality standards and criteria. As intervenors in MCE v. EPA, NACWA and the Urban Areas Coalition (a group of Missouri NACWA member agencies) agreed with the consent decree and settlement agreement. The presence of NACWA members in the case helped bring it to resolution and positions them to play a role in future regulatory development.
Under the settlement and consent decree, by April 2006 Missouri must submit new or revised WQS to EPA for approval for: dissolved oxygen, dissolved metals criteria for drinking water supply, water quality criteria for aquatic life protection, human health-fish consumption, and drinking water supply, stream classifications for cold-water sport fisheries, and designated beneficial uses. If the State fails to meet this deadline, EPA must propose a rule to address the standards. Final WQS are to be in place by December 2006. Missouri also will submit to EPA by April 2006 new or revised WQS for: protection of outstanding natural resource waters, whole body contact, primary contact recreation (beaches), site-specific water quality criteria, mixing zones in low flow streams, and for the fecal coliform/high flow exemption. The State also will submit an antidegradation rule by April 2007. If Missouri fails to take these actions, EPA must make a finding whether the new or revised WQS are necessary under CWA § 303(c)(4)(B).
American Canoe Association v. WASA
In September 2004 the U.S. Court of Appeals for the District of Columbia Circuit dismissed, at their request, the American Canoe Association’s (ACA’s) appeal of the March 2004 lower federal court decision that the Clean Water Act’s (CWA’s) citizen suit provisions can not be used to enforce complaints about odor, noise, or other non-water issues. NACWA, the U.S. Chamber of Commerce, and the American Public Works Association (APWA) were granted amicus curiae status in ACA v. District of Columbia Water and Sewer Authority (DC WASA) to support DC WASA’s assertion that non-CWA aesthetic "obligations" should not be "implied" into NPDES permit terms. Now, the lower federal court’s decision stands as solid law to support public agency arguments that odor, noise, aesthetics, zoning, or other concerns – if they cannot be resolved through discussion and consensus –should be brought as state law nuisance claims and not as CWA citizen suits.
Environmental Defense Center Inc. v. EPA
In June 2004 the U.S. Supreme Court declined to review the U.S. Court of Appeals for the Ninth Circuit’s September 2003 decision on EPA’s CWA Phase II municipal separate storm sewer (MS4) regulation (Phase II rule). Environmental Defense Center Inc. (EDC) v. EPA, 344 F.3d 832 (9th Cir. 2003); Texas Cities Coalition on Stormwater v. EPA, No. 00-70822 (U.S. Feb. 5, 2004).
As detailed in Legal Alert 03-8, the EDC case is important to NACWA members because the decision clarifies that removing pollutants to the maximum extent practicable (MEP) using best management practices (BMPs) is the only federal standard with which MS4 NPDES permits must comply under CWA § 402(p)(3)(B)(iii). MS4 permits are not required to contain numeric effluent limitations to meet water quality standards (WQS). NACWA’s March 2003 amicus brief was instrumental in the EDC court’s analysis. It is important to remember, however, that some states, such as New York and California, are including WQS compliance requirements in MS4 permits using their authority to be more stringent than federal law.
South Florida Water Management District v. Miccosukee Indian Tribe, et al.
In March 2004, the U.S. Supreme Court (Court) ruled in South Florida Water Management District (SFWMD) v. Miccouskee Tribe of Indians (Miccosukee), a case reviewing whether NPDES permits should be issued to operators of dams, levees, and similar flood control and water transfer structures to control their water quality impacts. NACWA’s amicus brief in the case, filed with member agency the New York City Department of Environmental Protection (NYCDEP) and other municipal groups, emphasized the complexity of adding thousands of new structures to the already backlogged NPDES permit program, the need to preserve local government autonomy over water management, and that other Clean Water Act (CWA) programs are designed to address the water quality impacts of transfer activities.
In vacating and remanding the SFWMD decision to the lower courts for factual clarification, the Court’s analysis suggests that pumping or moving water within a single water body generally will not require a permit, while pumping or moving water between separate water bodies will require a permit. The Court’s discussion reveals the Justices’ underlying suspicion that the Everglades pumping at issue in SFWMD occurs within a single, albeit human altered, water body. As discussed in Legal Alert 04-4, the SFWMD decision does not immediately impact any sources, although it further empowers any state that wants to begin permitting water transfer structures.
Gearhart v. EPA
On December 31, 2003, EPA met the settlement deadline of January 2004 to publish: 1) its plan to respond to the July 2002 National Research Council recommendations on risks from toxicants and pathogens in land-applied biosolids, and 2) the final results of a CWA § 405(d)(2)(C) review to identify additional pollutants in biosolids that may warrant regulation. EPA's action was governed by an April 1, 2002 consent decree and settlement between NACWA, the Natural Resources Defense Council (NRDC), and citizen plaintiffs in a thirteen-year-old lawsuit over EPA’s Clean Water Act biosolids regulations. Gearhart v. EPA, Civ. No. 89-6266-HO (D. Or.). In its action, EPA identifies 14 near-term biosolids projects, and 15 chemicals targeted for further review based on a conservative screening process.
Ohio Valley Environmental Coalition, et al., v. EPA
NACWA and its municipal coalition decided that an appeal of the court’s August 29, 2003 decision in this case concerning citizen challenges to EPA’s approval of West Virginia’s antidegradation implementation procedures would not be fruitful. Ohio Valley Envt’l Coalition v. EPA, 279 F. Supp.2d 732 (S.D.W.Va. 2003). Although EPA filed a protective appeal in the U.S. Court of Appeals for the Fourth Circuit to be situated to respond to any activist appeals, when the activist appeals did not materialize, EPA voluntarily dismissed the case. The district court decision now stands as the first comprehensive antidegradation precedent in federal court, and should be helpful to POTWs in the future. NACWA’s West Virginia members are working at the state legislative and regulatory levels to address the flaws in their antidegradation implementation procedures identified by the court. A detailed analysis of the court’s decision was distributed via Legal Alert 03-7.
American Farm Bureau Federation v. EPA
On November 18, 2003, the D.C. Circuit Court dismissed the case over the July 2000 TMDL rule as moot based on the fact that EPA withdraw the rule from the federal books before its effective date. American Farm Bureau Federation v. EPA, No. 00-1320 (D.C. Cir. 2000).
Pronsolino v. Nastri
In June 2003, the U. S. Supreme Court granted NACWA members a key victory when it denied any further review of the U.S. Court of Appeals for the Ninth Circuit’s decision in Pronsolino v. Nastri, 02-1186 (U.S. 2003); 291 F.3d 1123 (9th Cir. 2002). NACWA filed a brief with the High Court opposing certiorari in May 2003. The Pronsolino decision holds that impaired waters should be listed and subject to total maximum daily loads (TMDLs) under CWA § 303(d), whether impaired by point sources, nonpoint sources, or a combination of both. NACWA participated in the case at every stage to protect its member agencies from nonpoint source efforts to remove themselves from the scope of the important TMDL program.
Defenders of Wildlife v. Browner
This case involved a challenge by Defenders of Wildlife (DoW) to a series of municipal stormwater permits that did not require strict compliance with water quality standards, including numeric effluent limits. NACWA, along with the American Public Works Association (APWA), the National Association of Counties (NACo), the National Association of Floodwater and Stormwater Management (NAFSMA), the National League of Cities (NLC) and others filed an amicus brief opposing DoW and arguing that the CWA only requires MS4 discharges to meet the “maximum extent practicable” (MEP) standard for removing pollutants. The Ninth Circuit embraced the position of NACWA and the other amici, holding that the CWA does not require MS4 discharges to strictly comply with water quality standards or meet numeric effluent limits. It is the one of the most important federal cases thus far addressing stormwater discharges.
Piney Run v. Carroll County
On May 20, 2002, the U.S. Supreme Court declined to review this Fourth Circuit victory for publicly owned treatment works (POTWs) on the scope of the Clean Water Act (CWA) permit shield. The decision provides critical confirmation that National Pollutant Discharge Elimination System (NPDES) permits offer strong protection from enforcement for the discharge of pollutants listed in an NPDES permit, as well as pollutants not listed but whose discharge is reasonably contemplated by the permitting authority at the time a permit is issued. Specifically, in Piney Run, the court found that the CWA's permit shield protected Carroll County, Maryland (County) from liability for discharging heat, which was not specifically listed in the County's NPDES permit, but where the County's effluent temperature was disclosed to the Maryland Department of the Environment (Maryland) in the permitting process. NACWA and the Water Environment Federation filed a joint amicus brief in the case in August 2000, successfully arguing that the County should not be liable for unlisted pollutants under the CWA's permit shield.
City of Anderson v. South Carolina DHEC
On February 4, 2002, the South Carolina Court of Common Pleas issued its opinion in a case involving the City of Anderson, South Carolina’s (City’s) challenge to the state Department of Health and Environmental Control’s (DHEC’s) adoption of a Trophic State Index (TSI) without public notice or comment. DHEC used the TSI to determine whether waterbodies were impaired by nutrients under South Carolina’s narrative water quality standard for aquatic life use, and then to place waters on the state’s Clean Water Act (CWA) §303(d) list. In April 2001, NACWA filed an amicus brief supporting the City’s challenge to the TSI. NACWA’s brief argued that notice and comment procedures for the TSI were essential because listing a water as impaired under §303(d) can result in more stringent effluent limits in individual National Permit Discharge Elimination System (NPDES) permits. Therefore, the participation of permittees like publicly owned treatment works (POTWs) in the development of tools such as the TSI is critical.
Bishop and Jarrett v. The Water Works and Sanitary Sewer Board of the City of Montgomery
Under the citizen suit provisions of the Clean Water Act, the plaintiffs in this case sued the City of Montgomery in the U.S. District Court for the City's alleged failure to report "each and every" sampling result in its monthly discharge monitoring reports (DMRs). The City of Montgomery responded by asking the court as a basic matter of law to rule in its favor based on the clear requirements in its NPDES permit to report only summaries of their monitoring results in its DMR. Therefore, although the City is required to keep records of its sampling results for three years, there is no permit requirement that directs the City to report all monitoring data outside of the summaries it already provides. NACWA's participation as amicus curiae demonstrated to the court the importance of protecting the integrity of existing NPDES permit conditions for all POTWs. This case settled in February 2001.