NACWA is pleased to provide the membership with the latest Litigation Report.  This Report provides updates on those NACWA litigation matters where there have been developments since Legal Alert 08-03, which was distributed to the membership in May.

Next Legal Affairs Committee Meeting at NACWA Summer Conference

The Legal Affairs Committee will meet on Friday, July 18 at 7:30 am as part of NACWA’s 2008 Summer Conference in Anchorage, Alaska.  The meeting will feature an update on current litigation, including recent amicus curiae briefs filed with the U.S. Supreme Court and U.S. Court of Appeals for the Ninth Circuit, and a roundtable discussion of Legal Hot Topics.  We hope those of you attending the Summer Conference will join us!

2008 Clean Water Law Seminar Set For November 12-14
Mark your calendars now for the 2008 NACWA Developments in Clean Water Law Seminar, which will be held November 12-14, 2008, in Washington, DC.  Planning for the Seminar will begin at NACWA’s Summer Conference in Alaska, and a draft agenda and registration information will be available in early September.  Join your colleagues at this annual conference to discuss current legal issues facing the clean water community, including an analysis of the outcome of the presidential and congressional elections in November.  If you have a topic you would like to suggest  for presentation at the Seminar, please contact Keith Jones, NACWA’s General Counsel, at 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 .

For More Information

More information on the cases listed below and on all NACWA legal matters can be found in the Litigation Tracking section of the Member Pipeline, including regular posting of new documents regarding NACWA’s active cases.  As always, please feel free to contact NACWA’s General Counsel, Keith Jones, at 202/533-1803 or kjones@nacwa.org 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

Brief Filed With U.S. Supreme Court in Pinto Creek Case

NACWA and the California Association of Sanitation Agencies (CASA) filed a joint amicus curiae brief with the U.S. Supreme Court on July 3, urging the Court to reverse a controversial decision by the U.S. Court of Appeals in Friends of Pinto Creek v. U.S. EPA.  The case, decided by the Ninth Circuit in October 2007, placed severe restrictions on when National Pollutant Discharge Elimination System (NPDES) permits can be issued to new discharges to impaired waters, even when such discharges would be “offset” by actions intended to result in a net environmental gain or water quality improvement.  The decision is in direct conflict with Cities of Annandale and Maple Lakes, a 2007 decision from the Supreme Court of Minnesota upholding the use of an offset analysis and in which NACWA filed an amicus brief supporting the use of such an offset analysis.  The NACWA/CASA brief, also filed with the California League of Cities, presents a number of arguments outlining why the Supreme Court should review the case, including significant public policy concerns the Ninth Circuit’s decision could have for municipal clean water utilities such as a de facto prohibition on construction of new wastewater treatment facilities discharging to impaired waters and potential complications with water quality trading programs.   The brief also encourages the Supreme Court to review the Ninth Circuit ruling due to the conflict with the Annandale case and stresses the importance of offset analysis as a tool for permitting authorities to use in improving overall water quality.  The Court is expected to decide whether to accept the case for review in Fall 2008.

NACWA Files Brief in Key Biosolids Case

NACWA filed a brief June 2 with the U.S Court of Appeals for the Ninth Circuit in City of Los Angeles v. County of Kern, a critical case involving the land application of biosolids that could have a significant impact in other parts of the nation.  The brief supports the Association’s long-standing position that individual municipalities should be able to choose the method of biosolids management that works best for their communities, including the option of land application.  Additionally, it discusses the critical role land application plays for many clean water utilities across the country to meet their environmental mandates and outlines the difficulties these utilities would face if land application bans became widespread.  The brief also highlights the safety and agricultural benefits of land applying biosolids when done in compliance with state and federal regulations and stresses the primacy of state and federal regulatory efforts over misguided local attempts to enact land application bans.  NACWA filed the brief at the request of the City of Los Angeles, Orange County Sanitation District, and the Los Angeles County Sanitation District — member agencies that are fighting a ban on land application initiated by Kern County, California in 2006.  All three utilities have safely land-applied biosolids for agricultural purposes in Kern County for many years but would have been prevented from continuing to do so under the terms of the ban.  A lower court blocked implementation of the ban on the grounds that it violated federal and state law but an appeal was lodged by Kern County, leading to the current litigation.  The Ninth Circuit is expected to set an oral argument date in the case in the coming months.

Court Releases Revised Ruling in Effluent Limitation Guideline Case

The U.S. Court of Appeals for the Ninth Circuit issued a revised opinion May 23 in Our Children’s Earth Foundation (OCEF) v. U.S. Environmental Protection Agency (EPA), affirming and broadening the court’s October 2007 ruling that upheld EPA’s discretion in implementing key elements of the effluent limitation guidelines (ELG) program.  The revised opinion rejects the final challenge brought by activist groups to the EPA’s implementation of the ELG program and represents a resounding victory for NACWA on all of the issues raised in the appeal.  The previous Ninth Circuit opinion issued in October 2007 had granted EPA and the intervenors in the case, including NACWA, important victories on three of the four issues in the appeal, including a determination that EPA has discretion to set the timing of ELG plan publication and can identify potential new categories of pollution sources without necessarily developing new effluent guidelines for them.  The new ruling, issued after EPA filed a request for a rehearing, grants EPA and the intervenors a victory on the fourth issue by finding that EPA has the discretion to choose not to use a technology-based approach in reviewing ELGs.

This decision marks a significant legal victory for NACWA, as the Association 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 Association since then has invested substantial resources from the Targeted Action Fund (TAF) to achieve this litigation success on behalf of its members.  NACWA will continue to track this case and may take additional action if the Ninth Circuit decision is appealed to the U.S. Supreme Court.

Settlement Negotiations Continue in BEACH Act Litigation

Settlement discussion are ongoing 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).   NACWA and the other parties involved in the litigation are attempting to reach a settlement agreement prior to the start of trial, which was originally scheduled for July but was recently rescheduled to late August by court order.  The current settlement negotiations follow a ruling by the federal District Court for the Central District of California in April which 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 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.  NACWA is hopeful that all parties will be able to reach settlement, but is prepared to go to trial if an agreement cannot be reached.  The Association will continue to be actively involved in this case and report on any developments to the membership.

NACWA to Support Oregon Members in Compliance Schedule Case

NACWA will be providing financial support to the Association’s Oregon members and the Oregon Association of Clean Water Agencies (ORACWA) in Northwest Environmental Defense Center v. U.S. Environmental Protection Agency (EPA) a significant litigation matter involving a challenge to the use of compliance schedules in NPDES permits issued by the State of Oregon.  NACWA was originally planning to intervene in the case, however ORACWA has informed the Association that settlement negotiations continue to be ongoing in the case and that intervention would not be appropriate at this time due to the sensitive nature of the ongoing settlement talks.  Instead, pursuant to a request from ORACWA and approval by the NACWA Board in May, the Association will make a financial contribution to ORACWA to help defray their legal costs.  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 seeking a court order to enjoin the use of compliance schedules in any new or renewed NPDES permits in Oregon.  NACWA will continue to track the case and stand by to provide additional assistance if requested.

NACWA Facilitates Meeting with EPA to Discuss WET Limit at Heart of Recent Litigation Matter

NACWA helped to facilitate a meeting May 15 between member agency the San Jacinto River Authority (SJRA) and EPA Headquarters staff to discuss a NPDES permit issued to SJRA that was the focus of recent litigation.  The permit contained Whole Effluent Toxicity (WET) limits for lethality and sub-lethality and led to an appeal by SJRA to the Environmental Appeals Board (EAB) 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.  SJRA, concerned by this overreach of federal authority, appealed the permit to the EAB, requesting NACWA’s support in the appeal.  However, soon after NACWA agreed to enter the case in April, SJRA learned that EPA was withdrawing the contested portions of the permit, including the sections relating to the WET limits.  As a result, the appeal filed with the EAB was dismissed as moot.  The meeting facilitated by NACWA allowed SJRA and EPA headquarters staff to further discuss the permit and SJRA’s specific concerns over WET limits.  Region VI also participated in the meeting and is expected to reissue the permit in the coming months.  NACWA will continue to track developments and stands ready to assist SJRA in future litigation if necessary.