NACWA is pleased to provide the membership with the latest Litigation Report.  This Report contains summaries of the Association’s legal initiatives and discusses developments in NACWA’s litigation matters.

Legal Affairs Committee to Meet at Winter Conference in Phoenix

The Legal Affairs Committee will meet as part of NACWA’s 2008 Winter Conference in Phoenix, AZ on Thursday, February 7 at 7:30 am.  The meeting will feature an update on current litigation and Targeted Action Fund (TAF) projects, a strategic discussion of legal issues surrounding the recent Natural Resources Defense Council (NRDC) petition on secondary treatment, and a roundtable discussion of Legal Hot Topics.  We hope you can join us!

Late Breaking Legal Issues Calls

NACWA completed a successful Late Breaking Legal Issues call on December 12 with a productive discussion on a recently completed use attainability analysis (UAA) for Indianapolis, IN and the development of a new total maximum daily load (TMDL) for polychlorinated biphenyls (PCBs) in the tidal Potomac River.  Handouts from the call are available on the Late Breaking Legal Issues section on the legal page of the NACWA Member Pipeline.  The dates for 2008 calls are March 12, June 11, September 10, and December 10.  All calls are held from 2:00 – 3:00 pm eastern.  Dial-in information for all 2007 calls can be found on the legal section of NACWA’s Member Pipeline.  Feel free to suggest a future topic!

New Legal Publication Completed, Distributed to Members

NACWA’s most recent legal publication, titled Protecting Water Resources Infrastructure from Security Threats in a Modern World: The Emerging Legal and Policy Frameworks, was completed in December and distributed to the NACWA membership.  Based on NACWA’s successful 2002 Legal Issues in a Time of Crisis, the new publication, produced in cooperation with the American Public Works Association (APWA), the Association of Metropolitan Water Agencies (AMWA), and the Water Environment Federation (WEF), has been significantly updated to reflect the many changes to the legal landscape involving security issues over the past five years.  The new publication has been expanded to include a discussion of security challenges facing drinking water utilities and public works agencies in addition to valuable information on public wastewater treatment facilities.  Among the relevant topics is an examination of the current federal legislative framework for protecting water sector infrastructure, a discussion of the potential for civil liability that water sector utilities might face in the event of a terrorist attack or security breach, and an overview of the legal obligations of employers to their employees in the event of a terrorist attack on a facility.  Additionally, the publication includes a “Quick Reference Checklist,” which provides clean water managers and attorneys with an easy way to identify some of the major legal and security considerations for their facilities and references to other detailed information about specific issues in the publication.  Additional electronic copies of the handbook are available for free download to NACWA members on the Bookstore page of the Member Pipeline at www.nacwa.org.

For More Information

New documents are posted regularly in NACWA’s active cases in the Litigation Tracking section of the Member Pipeline.  As always, please feel free to contact NACWA’s General Counsel, Keith Jones, at 202/533-1803 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spam bots, you need JavaScript enabled to view it with any questions or comments on NACWA’s legal activities.

CASE BRIEFS

Ninth Circuit Grants NACWA Major Victory in Effluent Limitation Guideline Ruling

The U.S. Court of Appeals for the Ninth Circuit released a decision October 29, 2007, in Our Children’s Earth Foundation (OCEF) v. Environmental Protection Agency (EPA), a case involving a challenge by OCEF to EPA’s Effluent Limitation Guidelines (ELG) program.  The court’s ruling essentially affirms EPA’s current implementation of the ELG program, echoing the position taken by NACWA in its brief and marking an important litigation victory for the Association.   NACWA entered the case as an intervenor in 2004  and urged the Court of Appeals in November 2005 brief to affirm the finding of the District Court that EPA is implementing the ELG program properly and consistent with Congress’ intent.  The Ninth Circuit’s decision upheld much of the lower court’s decision, finding in favor of EPA on numerous issues.  Specifically, the Ninth Circuit determined that EPA has discretion to determine the timing of ELG plan publication and can identify potential new categories of pollution sources without necessarily developing new effluent guidelines for them.  In addition, ELGs are not required to be reopened and revised every five years, the Court said.  The Court of Appeals did not take a position on whether EPA ignored the technology-based review for ELGs and instead remanded the issue to the District Court for further consideration.  The Ninth Circuit suggested that the lower court could still reaffirm its original decision on this issue if it finds that EPA actually reviewed the availability of new technologies in addition to conducting a hazard-based review.

The outcome of the remanded issue is not central to NACWA’s overall interest in the case, which was a general endorsement of EPA’s current ELG program and belief that ELG revisions are not needed or required every five years.  EPA has recently filed a petition for rehearing with the Ninth Circuit, and NACWA will continue to track the case and report on any additional developments.

Court Releases Long Awaited Decision in Clean Water Act Attorneys’ Fee Award Case

A ruling was released October 18 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.

NACWA Joins in Brief Filed in Water Transfer Appeal

NACWA joined with other municipal groups in filing an amicus curiae brief December 21, 2007, with the U.S. Court of Appeals for the 11th Circuit in Friends of the Everglades (FOE) v. South Florida Water Management District (SFWMD), an important case addressing whether transfers of natural, untreated water from one body of water to another constitutes an addition of pollutants requiring a National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA).  NACWA’s Board approved participation in the case via electronic ballot in early December 2007.  The brief was drafted by the City of New York and was joined by NACWA, the National League of Cities, the New York Conference of Mayors, the American Water Works Association, the Association of Metropolitan Water Agencies, and the National Association of Flood and Stormwater Management Agencies (NAFSMA) to give it additional weight before the Eleventh Circuit.  The brief is part of an appeal from a federal district court in Florida which ruled that such transfers require an NPDES permit.

The brief echoes NACWA’s longstanding position that such transfers of water should not require an NPDES permit and argues that NPDES permitting of interbasin water transfers will burden tens of thousands of water authorities and municipal water departments and agencies with unnecessary and, in many cases, unattainable regulatory requirements.  The brief further notes that the amici's fundamental interest is protecting the nation's water and they are not opposed to regulation of water transfers, but they believe the NPDES program is not the appropriate mechanism.  This position is consistent with NACWA’s position in previous litigation, including the 2006 Catskill Mountains case before the Second Circuit Court of Appeals.   An oral argument date has not yet been set by the 11th Circuit but is expected to be scheduled in the coming months.

NACWA Files Amicus Brief in Washington State Stormwater Permit Case

NACWA filed an amicus curiae brief on January 16 in Puget Soundkeeper Alliance v. State of Washington, a case involving a challenge to municipal stormwater permits issued by the State of Washington.  NACWA’s Board approved participation in this case at its July 2007 meeting at the request of the Association’s Washington members, many of whom are among a municipal coalition appealing the permits.  The permits require that stormwater discharges comply with state water quality and toxicant standards in addition to control of pollutants based on the “maximum extent practicable” (MEP) standard.  Washington State’s surface water quality regulations contain numeric criteria for many conventional and toxic pollutants.  The permits’ requirement to comply with state water quality and toxicant standards may ultimately require compliance with the state regulation’s numeric criteria.  Many of the municipalities with permits have decided to appeal and are specifically challenging the permit provisions requiring compliance with the state water quality standards.   The municipalities argue that such a condition is unlawful and inappropriate because it requires them to comply with standards that are not legally required and are not otherwise reasonable, justifiable, and supported by substantial evidence.  Additionally, the municipalities are also challenging the permits on the grounds that they have not been granted sufficient time in which to accomplish the required actions.

NACWA has been asked by its Washington State members to file an amicus brief in the matter solely on the issue of whether the requirement to comply with water quality standards is appropriate in stormwater permits.  To this end, NACWA’s brief argues the Association’s longstanding position that any requirement for municipal stormwater permits to meet water quality standards is inappropriate, especially if there are numeric limits for pollutants.  NACWA’s position in this case is similar to positions the Association has taken in other stormwater litigation.  NACWA has been joined in this effort by NAFSMA and will keep the membership updated on any developments.

Board Approves NACWA Participation in Oregon Compliance Schedule Case

The NACWA Board approved in early December 2007 via electronic ballot the Association’s participation in Northwest Environmental Defense Center v. U.S. Environmental Protection Agency (EPA), an important piece of litigation challenging the use of compliance schedules in NPDES permits issued by the State of Oregon.  The Association’s participation in the case is at the request of NACWA’s Oregon members and the Oregon Association of Clean Water Agencies (ORACWA).   The case is being brought by a consortium of environmental groups seeking to invalidate Oregon’s water quality rules that allow for compliance schedules in NPDES permits.  The specific challenge outlined in the case involves an NPDES permit issued to a pulp and paper plant, but the ramifications could affect every Oregon NPDES permit holder and potentially set a negative precedent for the rest of the country.   The plaintiffs in the case seek an injunction vacating and setting aside EPA approval of Oregon’s compliance schedule provision and invalidating any CWA permits already issued in reliance upon the provision.  The plaintiffs are also planning to file a motion to enjoin the use of compliance schedules in any new or renewed NPDES permits in Oregon.
ORACWA has been granted intervention in the case, and a settlement is currently being pursued by the parties.  At the suggestion of ORACWA, NACWA is currently awaiting the resolution of settlement discussions before getting involved in the case.  If the case settles, no action will be required on NACWA’s part.  If no settlement is reached, NACWA will move to intervene in the case and support ORACWA in fighting any attempts to remove compliance schedules from Oregon NPDES permits.  NACWA will continue to report on any developments to the membership.

Summary Judgment Motions Filed in BEACH Act Litigation

NACWA filed a Motion for Summary Judgment October 23, 2007, in Natural Resources Defense Council (NRDC)  v. EPA,  an important case involving a legal challenge over EPA’s failure to establish new recreation water quality criteria as required by the Beaches Environmental Assessment and Costal Health Act (BEACH Act).   NACWA’s motion requested that the court rule in the Association’s favor on a number of undisputed issues, including EPA’s failure to publish new criteria as required by Congress.  The other parties have also filed Motions for Summary Judgment, and NACWA filed a response to EPA’s motion on January 8, 2008.  A hearing on the motions is scheduled for February 11, 2008, although it is not clear whether the court will rule on the motions at that time or hold the matter under advisement.

NACWA also filed its Expert’s Report on October 5, 2007, which outlined the Association’s scientific position in the case including what additional studies NACWA believes are necessary for EPA to conduct and how much time the Agency will need to publish appropriate criteria.  Additionally, the report addressed a number of issues raised in EPA’s Expert’s Report, which was submitted in late August.  NACWA’s report proposes that EPA conduct additional studies to produce a scientifically valid data set for developing new criteria.  The report also expresses concern with EPA’s ambitious five-year time frame for completing the necessary water quality studies and criteria development.  Time should be built in after completion of the studies, but before new criteria development begins, to provide the regulated community and other stakeholders with the opportunity to discuss and comment on the results.  Such opportunities would ensure that the data collected provide a scientifically valid basis for new criteria.  A mandatory settlement conference is scheduled for February 13, 2008.  Nevertheless, no substantive settlement talks are expected to begin before a ruling is made on the summary judgment motions.   There have been no recent settlement discussions.  NACWA will participate in the event that settlement negotiations do resume.  NACWA will keep the membership updated on any developments.

Parties Reach Settlement in Stormwater Fee Case

The City of Cincinnati and the federal government reached an agreement November 15, 2007, to settle litigation over payment of stormwater fees.  The dispute arose when a federal Department of Health and Human Services (DHHS) facility within the City’s service area refused to pay over $100,000 in past-due invoices for stormwater services, alleging that the stormwater service charges were an impermissible “tax” on the federal government and thus refused payment.   NACWA, along with the National League of Cities (NLC), the National Association of Flood and Stormwater Management Agencies (NAFSMA), and the American Public Works Association (APWA) filed an amicus curiae brief in the Fall of 2004 arguing that Clean Water Act Section 313 gives local governments the authority to collect fees from the federal government to cover the cost of stormwater services at its facilities.  An Ohio federal court on March 27, 2007, agreed with this position, and ruled that a U.S. government facility within the City’s service area is not exempt from paying stormwater fees.

As a result of the settlement agreement, the DHHS facility will pay a negotiated portion of the past-due stormwater fees, and after the facility makes its first payment on its current fees the City will dismiss the case.   The DHHS facility does not admit any liability as part of the settlement, but this resolution leaves in place the court’s March ruling, which found that “the City’s stormwater system charge falls squarely within the waiver of sovereign immunity,” and thus the DHHS facility is not exempt from paying the charges.  This ruling will serve as helpful precedent for any future cases that may arise where federal facilities refusing to pay local stormwater fees.  The participation of NACWA and the other municipal amicus groups was a key factor in the Court’s ruling and the ultimate settlement.   NACWA’s participation in this litigation is now complete.

NACWA Attends Oral Arguments in Appeal of Blue Plains NPDES Permit

Oral arguments before EPA’s Environmental Appeals Board (EAB) were held November 15, 2007, in an appeal of an NPDES permit issued to the District of Columbia Water and Sewer Authority (DCWASA), a NACWA member agency, for its Blue Plains Wastewater Treatment Plant.  The permit lacked compliance schedules for implementing DCWASA’s long-term control plan (LTCP) to eliminate combined sewer overflows (CSOs) and for meeting new and more stringent nitrogen limits.  NACWA and the Wet Weather Partnership (WWP) have supported DCWASA in its appeal due to the importance of compliance schedules for CSO communities and attended the hearing.  NACWA and the WPP have also filed multiple briefs in the case, including two separate briefs filed within the past few months which challenge the permit due to its lack of compliance schedules for DCWASA’s LTCP and for new nutrient requirements.  The judges at the EAB hearing seemed to support DCWASA’s position that a compliance schedule was required in the NPDES permit and were skeptical of EPA’s position that the Agency had discretion not to include one.  The briefs NACWA and WWP filed on the issue were mentioned during the arguments and demonstrated the importance of this matter for communities across the country.  A ruling from the EAB is expected sometime in the coming months.  NACWA will keep the membership updated on any developments in this case.

Parties in Clean Water/Drinking Water Case Agree to Mediation

The Greater Cincinnati Water Works (GCWW) and NACWA member agency Sanitation District No. 1 of Northern Kentucky (SD No. 1) have agreed to enter mediation involving a dispute over a new wastewater treatment plant built by SD No. 1 and located upstream from GCWW’s drinking water treatment plant.  This mediation marks the latest round in a disagreement between the two agencies which began in 2004 with an appeal by GCWW of the original discharge permit issued to SD No. 1 for the new wastewater treatment facility.  GCWW expressed concern that the facility’s outfall would be a source of problematic pollutants such as endocrine disrupters, cryptosporidium, giardia, and viruses at GCWW’s downstream drinking water plant.  However, SD No. 1 has installed state-of-the-art treatment and disinfection technology at the plant, going above and beyond state and federal regulatory standards to ensure that the effluent poses no danger to downstream drinking water sources.  Additional scientific studies have also suggested that the discharge from the wastewater plant will pose a threat to GCWW’s water intake.

Due to unexpected difficulties affecting the cost, permitting, and environmental impact of the effluent pipeline and outfall structure, SD No. 1 decided to move the original discharge location, thus making the 2004 discharge permit moot.  A permit for the new discharge location was issued in late summer 2007, with the plant becoming operational in fall 2007.  GCWW indicated that it would renew its legal challenge to the plant upon the issuance of the new permit.  However, the parties instead have agreed to pursue mediation in an attempt to resolve the dispute.   NACWA will keep the membership updated on developments in this critical case.

New MS4 Permit Expected to be Issued to District of Columbia

Negotiations between the Friends of the Earth (FOE), Defenders of Wildlife (Defenders), EPA, and the District of Columbia (District) involving the March 2006 Final Modification to the District’s MS4 permit broke down in late October with the parties unable to reach an agreement.  As a result, EPA has withdrawn the contested portions of the permit with the intention of drafting new modifications to address the contested provisions.   Although a timeline for issuance of the new permit is not clear, the permit is likely to include a number of green infrastructure and low impact development components.  It is also likely that the new permit will not contain any numeric discharge limits, which could lead to additional litigation from the environmental groups.    This was the same issue raised by FOE and Defenders in 2000 when they filed petitions for review with EPA’s Environmental Appeals Board (EAB) over the permit, citing the permit’s failure to “contain effluent limits adequate to assure compliance with water quality standards.”  They alleged that “pollutant specific, numeric limits” are “presumptively required” by the CWA, which is contrary to the CWA’s legislative history, NACWA’s long-standing positions, and prior court decisions.  NACWA, the National League of Cities (NLC), the National Association of Flood and Stormwater Management Agencies (NAFSMA), the CSO Partnership (CSOP), the West Virginia Municipal League (WVML), and the Virginia Municipal League (VML) have all been involved in this case to protect the MEP standard for MS4 discharges and will continue to monitor any developments after the release of the new permit.

Appeal Lodged in CWA Jurisdiction Case

The City of Healdsburg has appealed a decision of the U.S. Court of Appeals for the Ninth Circuit to the U.S. Supreme Court in City of Healdsburg (Healdsburg) v. Northern California River Watch, a case involving CWA jurisdiction over a wastewater treatment percolation pond.  The Ninth Circuit ruled in an August 2006 decision that a manmade wastewater percolation pond was a "waters of the United States" for purposes of CWA regulation because the pond contains adjacent wetlands with a "significant nexus" to the Russian River, a navigable "waters of the United States.”  Based on this jurisdictional finding, the court held that the City must obtain an NPDES permit to discharge to the percolation pond.   This decision was one of the first appellate court opinions to interpret the U.S. Supreme Court’s June 19, 2006 decision in Rapanos et ux., et al. v. United States and Carabell et al. v. U.S. Army Corps of Engineers et al. (Rapanos).  NACWA, together with the California Association of Sanitation Agencies (CASA) and the Association of California Water Agencies (ACWA), filed a brief on behalf of Healdsburg in 2004 before the Ninth Circuit, and also filed a letter on September 8, 2006, with the Court of Appeals requesting a rehearing.  NACWA and CASA continue to track the case, and a decision from the Supreme Court on whether to hear the case is expected in the coming months.  If the United States Supreme Court accepts the case for review, NACWA will consider filing an amicus brief.   NACWA will keep the membership updated on any developments.

TMDL Suitability Analysis Nearing Completion

Work is almost complete on a suitability analysis to determine the appropriateness of creating true “daily” total maximum daily loads (TMDLs) for certain pollutants, including nutrients, mercury, and bacteria, and a final draft is expected to be available at the Winter Conference in Phoenix.  Creation of this analysis follows the decision of the U.S. Supreme Court in January 2007 not to review Friends of the Earth v. EPA, an April 2006 ruling 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, annual, or seasonal averages.  As a result of the United States Supreme Court’s action, the D.C. Circuit decision will stand, and EPA has been directed to develop new TMDLs for the Anacostia River in accordance with the Court of Appeals decision by June 2008.  NACWA looks forward to releasing the analysis to its members and will continue to track the development of true “daily” TMDLs.

No Action Yet in Ohio Phosphorus TMDL Case

NACWA and the Association of Ohio Municipal Wastewater Agencies (AOMWA) continue to await action by the City of Salem, OH (City) to initiate a challenge to EPA’s September 2005 approval of phosphorus TMDLs for several Ohio river.  The City alleges that approval was inappropriate because the Ohio Environmental Protection Agency (Ohio EPA), using an internal technical guidance document, developed the TMDLs based on “target values” rather than real world conditions.  These TMDLs, in turn, are the source of new, more stringent phosphorus effluent limitations in wastewater NPDES permits.  NACWA’s Board approved the Association working with AOMWA in July 2006 on an amicus curiae brief supporting the City, and NACWA will develop the brief with AOMWA once the City has initiated the litigation.  No action is expected until the state environmental appeals board makes a ruling on a remand from the state court of appeals, which could happen in the coming months.