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.

Next Legal Affairs Committee Meeting at NACWA May Policy Forum

The Legal Affairs Committee will meet on Sunday, May 4 at 4:15 pm as part of NACWA’s 2008 National Clean Water Policy Forum in Washington, DC.  The meeting will feature an update on current litigation, including the most recent developments in the BEACH Act case, and a roundtable discussion of Legal Hot Topics.  We hope those of you attending the Policy Forum will join us!

Late Breaking Legal Issues Calls

The next NACWA Late Breaking Legal Issues Call will be held on June 11 at 2:00 pm Eastern time and will be a joint call with the Legal Affairs Task Force of the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA).  The call will provide an opportunity for members of NACWA and ASIWPCA to discuss issues of mutual interest, including recent developments regarding nutrient control and various ongoing litigation around the county that may affect members of both organizations.   The dates for future 2008 calls are September 10 and December 10; all calls are held from 2:00 – 3:00 pm Eastern and dial-in information can be found on the legal section of NACWA’s Member Pipeline.  Feel free to suggest a future topic!

For More Information

New documents are posted regularly regarding 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

Court Issues Favorable Ruling in BEACH Act Litigation

NACWA won a key victory on April 7 in Natural Resources Defense Council (NRDC)  v. U.S. Environmental Protection Agency (EPA),  an important case involving a legal challenge over EPA’s failure to establish new recreational water quality criteria as required by the Beaches Environmental Assessment and Costal Health Act (BEACH Act).   The District Court for the Central District of California granted NACWA’s request for summary judgment, along with those of other plaintiffs in the case, and ruled that the court does have the authority to direct EPA to conduct specific studies as part of the Agency’s compliance with the BEACH Act.

The court’s ruling also stated that the EPA must conduct the necessary recreational water quality criteria studies “after consultation with and in cooperation with” local officials, adopting arguments made by NACWA at a March 24 hearing that the studies be developed and implemented with stakeholder input.

The case stems from EPA’s failure to conduct scientific studies and publish new recreational water criteria by 2005 as required by the BEACH Act.  NRDC sued EPA in 2006 to force compliance with the statue, and NACWA intervened in the case to ensure the interests of the clean water community are represented and that the new criteria are based on valid science.  The court’s April 7 order marks a significant turning point in the case by insuring that stakeholder groups such as NACWA will be able to present evidence to the court about what specific studies EPA should be required to undertake.  The ruling resolved crossing motions for summary judgment from the parties, with EPA arguing that the court only had the authority to set a deadline for completion of the required recreational water studies but could not order the Agency how to conduct the studies, and NACWA and the other plaintiffs contending that the court should not only establish a deadline but also direct EPA to conduct specific studies to ensure compliance with the BEACH Act statute.  The court’s ruling embraces the arguments of NACWA and the other plaintiffs, stating that “it is appropriate to allow trial to determine the appropriate remedies for the EPA’s statutory violations, including the appropriate studies that the EPA must conduct to satisfy the requirements” of the BEACH Act.  The order also directs the parties to prepare for trial on the issue of remedy in late July, at which time NACWA will have the opportunity to make a case for those studies the Association feels are most important to the development of scientifically valid recreational water quality criteria.  The ruling also paves the way to restart settlement negotiations, which were ongoing prior to the March 24 hearing.  NACWA will continue to be actively involved in this case and report on any developments to the membership.

NACWA Wins Victory in Washington State Stormwater Case

NACWA achieved a notable victory April 2 when the Washington State Pollution Control Hearing Board (PCHB) issued a preliminary ruling in Puget Soundkeeper Alliance v. State of Washington, a case involving a challenge to municipal stormwater permits issued by the State of Washington.   The PCHB ruling held that that the federal Clean Water Act (CWA) does not require strict compliance with state water quality standards in stormwater permits, agreeing with the position taken by NACWA and the National Association of Flood & Stormwater Management Agencies (NAFSMA) in a joint brief filed in the case in January.  The hearing board also agreed with NACWA and NAFSMA that neither the federal Phase I and Phase II stormwater regulations nor the federal National Pollutant Discharge Elimination System (NPDES) permit regulations require strict compliance with state water quality standards.   The ruling echoes previous victories NACWA has obtained in similar stormwater cases and reinforces the proposition that the federal CWA does not require permit holders to go beyond the “maximum extent practicable” (MEP) standard for controlling pollutants in municipal separate stormwater sewer system (MS4) discharges.    

NACWA’s Board approved participation in this case at its July 2007 meeting at the request of the Association’s Washington State 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 MEP standard.  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.  The PCHB’s April 2 ruling addresses the issue of most interest to NACWA members, but there are a variety of other issues the board has yet to decide.  Additionally, activists groups may choose to appeal the board’s ruling with regard to whether the federal CWA requires strict compliance with state water quality standards.  NACWA will continue to track the case and report on any developments.

EAB Embraces NACWA Position, Issues Positive Ruling in Blue Plains Permit Appeal

The U.S. Environmental Appeal Board (EAB) released a much-anticipated ruling on March 19, finding that a NPDES discharge permit issued to NACWA member agency the District of Columbia Water and Sewer Authority (DCWASA) should have contained a compliance schedule for implementation of the District of Columbia’s combined sewer overflow (CSO) long term control plan (LTCP).  The case involved a discharge permit which did not contain a compliance schedule for DCWASA’s LTCP to reduce CSOs, despite a requirement in the District of Columbia’s water quality regulations that all permits must contain such compliance schedules.  Additionally, the permit also lacked a compliance schedule for new, more stringent nitrogen limits outlined in the permit.   DCWASA challenged the permit because of the absence of these two compliance schedules, and NACWA collaborated with the Wet Weather Partnership (WWP) to file joint briefs before the EAB supporting DCWASA’s appeal and outlining the importance of compliance schedules for CSO communities.

The EAB decision largely adopted the arguments made by NACWA and the WWP, finding that the District of Columbia regulations require the challenged permit to have compliance schedules for both the LTCP and the new nitrogen limits and remanding the permit back to EPA to include the necessary compliance schedules.  The decision represents a significant victory for NACWA members as it reaffirms the power of states to require compliance schedules in NPDES permits, and it also emphasizes the importance of compliance schedules to CSO communities with LTCPs.  Additionally, it sets an important national precedent which will be helpful to other NACWA members and CSO communities.  NACWA will continue to follow this case and report on the revised permit when it is reissued.

Contested Permit with WET Limits Withdrawn in New Litigation Matter

The NACWA Board approved participation March 14 in a new litigation matter, San Jacinto River Authority (SJRA) v. EPA, which involves an appeal by member agency SJRA of a NPDES discharge permit with Whole Effluent Toxicity (WET) limits for lethality and sub-lethality.   The appeal comes after EPA Region VI stepped in and federalized a previous state permit issued to SJRA by the Texas Commission on Environmental Quality (TCEQ), the state permitting agency, which did not contain WET limits.  EPA federalized the permit in part because it was unhappy the permit lacked WET limits, even thought the original state permit was issued in compliance with the Texas water quality standards which had previously been approved by EPA.  SJRA was concerned by this overreach of federal authority and appealed the permit to the EAB, requesting NACWA’s support in the appeal.  However, soon after NACWA agreed to enter the case, SJRA learned that EPA was withdrawing the contested portions of the permit, including the sections relating to the WET limits.  While the exact reason for EPA’s withdrawal of the permit is unclear, the decision came soon after NACWA expressed concern over the permit at a meeting where EPA headquarters permitting staff were present.  Following the withdrawal of the contested portions of the permit, EAB dismissed SJRA’s appeal of the permit as moot.  NACWA has since facilitated a meeting scheduled for mid-May between SJRA and EPA headquarters staff to further discuss the permit and SJRA’s specific concerns over WET limits.  We will report on any developments.

NACWA Awaits Action in Oregon Compliance Schedule Case

NACWA is currently waiting for further action in Northwest Environmental Defense Center v. U.S. Environmental Protection Agency (EPA) before moving to intervene in the case.   The case involves a challenge to the use of compliance schedules in NPDES permits issued by the State of Oregon, and the Board approved NACWA participation in the case at the request of the Association’s Oregon members and the Oregon Association of Clean Water Agencies (ORACWA).   However, ORACWA has informed NACWA that settlement negotiations continue to be ongoing in the case and that it would like to revisit potential support from the Association as the discussions proceed.   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 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.  NACWA will continue to track the case and keep the membership updated.

Work Underway on Brief in Kern County Biosolids Case

NACWA is working on an amicus curiae brief to file in City of Los Angeles v. County of Kern, a key biosolids case currently on appeal before the Ninth Circuit Court of Appeals.   The Board approved NACWA participation in this case on March 14.  The case involves an appeal of a lower court ruling won by Los Angeles which prevented the enforcement of a biosolids ban instituted by Kern County, CA, which would have halted all land application of biosolids in the county and would have significantly impacted the City of Los Angeles, which applies its biosolids on a 5,000-acre farm it owns in Kern County.   Kern County has now appealed the ruling to the Ninth Circuit and NACWA will be filing a brief with the appellate court supporting the lower court decision and emphasizing the importance of land application of biosolids for clean water utilities all across the nation.  The brief will highlight the strong partnership that many NACWA members have with the rural communities which land apply biosolids and emphasize the overwhelming scientific evidence that land application of biosolids does not pose any threat to human health or the environment.  The brief will be filed at the end of May.

Petition for Rehearing Filed in Effluent Limitation Guideline Ruling

A petition for rehearing has been filed by EPA with the Ninth Circuit Court of Appeals 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 appellate court released an opinion in October 2007 affirming 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 a 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 ruling 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, the court held that ELGs are not required to be reopened and revised every five years.  However, the court did rule against EPA on a number of issues unrelated to NACWA’s brief, and EPA subsequently asked the court for a rehearing.  The plaintiffs in the case filed a brief opposing rehearing, and the court has yet to indicate whether it will rehear the case.  NACWA will continue to track the case and report on any additional developments.

No Oral Argument Date Yet in Water Transfer Appeal

No date has been set yet for oral arguments in Friends of the Everglades (FOE) v. South Florida Water Management District (SFWMD), a case before the Eleventh Circuit Court of Appeals 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 signed onto a brief filed in December 2007 by the City of New York that 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. Other signatories to brief include 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 & 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.

In related news, EPA recently announced its intent to release the long-awaited water transfer rule in May or June.  This follows news that the proposed rule received final interagency approval from the Office of Management and Budget (OMB) in early April.  NACWA will alert the membership when the final rule is released.

Mediation Ongoing in Clean Water/Drinking Water Case

The Greater Cincinnati Water Works (GCWW) and NACWA member agency Sanitation District No. 1 of Northern Kentucky (SD No. 1) continue mediation efforts to resolve 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 comes after several rounds of litigation over the construction of SD 1’s new plant.  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 no threat to GCWW’s water intake.  NACWA  has supported SD 1 n past litigation involving this issue and stands ready to offer further assistance if the mediation does not achieve a satisfactory result.

District of Columbia Awaiting New MS4 Permit

A new stormwater permit is expected to be issued soon for the District of Columbia which will likely include a number of green infrastructure and low impact development components.  The new permit is expected as a result of failed negotiations between the Friends of the Earth (FOE), Defenders of Wildlife (Defenders), EPA, and the District of Columbia (District) over the March 2006 Final Modification to the District’s MS4 permit.  As a result, EPA withdrew the contested portions of the permit with the intention of drafting new modifications to address the disputed provisions.  In addition to the green infrastructure 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 the EAB over the permit, citing the permit’s failure to “contain effluent limits adequate to assure compliance with water quality standards.”  NACWA, the National League of Cities (NLC), the National Association of Flood and Stormwater Management Agencies (NAFSMA), the Wet Weather Partnership (WWP), the West Virginia Municipal League (WVML), and the Virginia Municipal League (VML) entered the case to protest the inclusion of numeric limits in MS4 permits, and stand ready to engage this issue once again if the activist groups challenge the new permit due to a lack of numeric effluent limits.  NACWA will report to the membership when the new MS4 permit is issued.

Supreme Court Denies Review of CWA Jurisdiction Case

The U.S. Supreme Court on February 19 declined to review a decision of the U.S. Court of Appeals for the Ninth Circuit 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 August 2006 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.  NACWA’s involvement in this case is now complete.

Action Awaited in Ohio Phosphorus TMDL Case

NACWA and the Association of Ohio Municipal Wastewater Agencies (AOMWA) continue to wait for action by the City of Salem, OH (City) to initiate a challenge to EPA’s September 2005 approval of phosphorus TMDLs for several Ohio rivers.  No action is expected until the state environmental appeals board makes a ruling on a remand from the state court of appeals on a related issue.  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.