» Update Archive

The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Fall 2011 Legal Update.  This Update provides summaries of current legal initiatives and discusses developments in NACWA’s litigation matters.  Please contact NACWA’s General Counsel, Nathan Gardner-Andrews, at 202/833-3692 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions on items included in this Update or NACWA’s legal advocacy efforts.  Copies of relevant court filings and documents, along with additional information on NACWA’s ongoing litigation, can be found on the Association’s Litigation Tracking website.

NACWA’s 2011 Law Seminar Addresses Key Legal Issues Impacting Utilities

NACWA’s 2011 Developments in Clean Water Law Seminar drew a large crowd in Charleston, S.C. during the week of  November 14, attracting top clean water attorneys from across the nation who joined together to explore the most critical legal and regulatory issues currently facing the municipal clean water community.  Among the many panel presentations at the Seminar was an examination of how clean water agencies that are currently under wet weather consent decrees can pursue reopeners of those agreements.  Speakers discussed the significant legal issues involved in reopening their decrees and offered valuable advice to other communities seeking to pursue similar actions.  Another panel presentation at the conference focused on wet weather issues, including a comprehensive review of current developments in the municipal stormwater arena and a discussion of ongoing litigation addressing the payment of stormwater fees by federal government agencies.  This panel also examined EPA’s current efforts on the sanitary sewer overflow (SSO) front.  Additional topics covered at the Seminar included biosolids management, nutrients, communication, and water quality issues.

The conference wrapped up with a presentation from Mark Pollins of EPA’s Office of Enforcement & Compliance Assurance (OECA) and Deborah Nagle of EPA’s Office of Water discussing the Agency’s upcoming efforts to pursue an integrated approach to clean water planning and permitting.  The EPA officials outlined how the Agency plans to move forward with this new initiative, including the planned release of a framework document this year that will provide additional details.  Handouts and presentations from the Seminar are available on NACWA’s website.

Legal Affairs Committee to Meet as Part of 2012 Winter Conference

The next meeting of NACWA’s Legal Affairs Committee will be held on February 13, 2012 as part of the Association’s 2012 Winter Conference in Los Angeles, Calif.  The agenda for the meeting is currently being developed, and anyone with suggestions for agenda items may contact Nathan Gardner-Andrews at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  Additional information on the Winter Conference is posted on NACWA’s website.  Be sure to join your legal clean water colleagues for this valuable meeting!

CURRENT CASES

NACWA Continues Forward With Litigation Over Sewage Sludge Incineration Rule

NACWA continues to move forward with its legal challenge to EPA’s final Sewage Sludge Incineration (SSI) rule.  The Association filed a Motion for Stay of the rule with the U.S Court of Appeals for the District of Columbia Circuit in September, requesting the court place implementation of the rule on hold pending a review of NACWA’s full challenge to the regulation.  NACWA also filed a series of replies with the court in October, responding to opposition to the stay request lodged by both EPA and the Sierra Club.  NACWA’s filings outlined the significant legal and technical flaws in the SSI rule and argued that many of the public clean water utilities operating SSIs face immediate and irreparable harm from both an economic and environmental standpoint if the rule is not stayed.  Unfortunately, the court issued an order November 28 denying the stay request.  Although disappointing, this developments was not unexpected due to the high legal bar for obtaining a stay, and the ruling will have no bearing on NACWA’s likelihood of success on the merits when the court eventually reviews the full challenge to the rule.  The court’s decision now paves the way for the parties in the litigation to negotiate a briefing schedule with the court, which should be in place within the next few weeks.  With all of the procedural issues now resolved, NACWA will push for as aggressive a briefing schedule as possible to ultimately put the Association’s full legal arguments before the court for a final decision on the merits as soon as possible.

Formal Answer Still Awaited to Administrative Reconsideration Petition
NACWA continues to wait for a formal answer from EPA on the Association’s  administrative petition for reconsideration of the SSI rule that was filed in May.  EPA officials informally told NACWA in late August that the Agency was planning to deny key elements of the reconsideration petition, including arguments based on both legal and technical issues, but was continuing to review one specific technical issue for possible reconsideration involving the variability of sewage sludge.  However, no formal response to any element of the petition has been received by NACWA to date, and in late September the Association sent a letter to EPA Administrator Lisa Jackson urging the Agency to re-evaluate its plans to deny the petition.  NACWA has also been actively working in recent weeks with key legislators on Capital Hill to pressure EPA to reconsider the rule.  NACWA hopes to receive a formal response from EPA to the reconsideration petition soon.Court

Places Challenges to Non-Hazardous Solid Waste Rule on Hold
In a related development, the D.C. Circuit announced in early November that it was putting legal challenges to EPA’s non-hazardous solid waste (NHSM) rule, also known as the solid waste definition rule, on hold pending planned revisions to the regulation that the Agency is expected to finalize next spring.  The NHSM rule provides a critical regulatory underpinning for the SSI Rule, and EPA announced in mid-October that is was planning to make revisions to the rule.   As a result of this EPA action, the court placed the current legal challenges to the NHSM rule, including one filed by NACWA, in abeyance pending the Agency’s final publication of revisions to the rule in April 2012.  This means that NACWA’s litigation over the rule will be placed on hold for the time being.  However, this development in the NHSM rule challenge will not impact the schedule for NACWA’s separate, parallel challenge to the SSI rule, which will continue to advance on its own timeline.

Intervention Granted in Chesapeake Bay Daily Loads Case to Defend Holistic Watershed Approach

NACWA was granted intervention Oct. 13 in critical litigation over the final total maximum daily load (TMDL) for the Chesapeake Bay, clearing the way for the Association and its municipal coalition partners to participate in the case and defend the holistic watershed approach outlined in the TMDL from assault by non-point source agricultural interests.  The order granting intervention issued by the U.S. District Court for the Middle District of Pennsylvania found that NACWA and it municipal partners have a legally protectable interest to justify intervention in the case, including both an “interest in the amount of nutrients and sediment their members are authorized to discharge” as well as “economic interests of preserving their capital investments in treatment upgrades.”  The court also noted that given complexity of the issues involved in the case, allowing NACWA and the other intervenors into the case can “serve to clarify issues and…contribute to resolution of this matter.”  Importantly, the court granted NACWA’s intervention in the litigation under the “as of right” legal test, establishing an important legal precedent that will be very helpful to the Association and individual clean water utilities that may seek to intervene in other TMDL-related cases in the future.

NACWA filed a Motion to Intervene in the case in May as an intervenor defendant on the side of EPA.  By doing so, NACWA sought to protect the interests of its municipal clean water agency members in the litigation and defend EPA’s ability to address all sources of water quality impairment.  NACWA was joined in the motion by the Maryland Association of Metropolitan Wastewater Agencies (MAMWA) and the Virginia Association of Metropolitan Wastewater Agencies (VAMWA).  The litigation stems from an attempt by the American Farm Bureau and other agriculture groups to challenge the final TMDL and limit EPA’s ability to regulate non-point agricultural dischargers as part of the TMDL implementation.  NACWA anticipates participating in the summary judgment phase of the litigation in the coming months.

Brief Filed in Litigation Over Nutrient Limits in Discharge Permit

NACWA filed a brief November 15 with the U.S. Court of Appeals for the First Circuit in an important case challenging EPA’s inclusion of contested nutrient limits in a federally issued National Pollutant Discharge Elimination System (NPDES) discharge permit.  NACWA filed the brief in support of an Association member — the Upper Blackstone Water Pollution Abatement District (UBWPAD) in Massachusetts — and its challenge to the nitrogen and phosphorus limits included in the permit.

NACWA’s brief argues that EPA acted illegally and irrationally in setting nutrient limits in UBWPAD’s discharge permit without regard to pending upgrades at the utility’s treatment plant and without consideration of the performance or environmental benefits of those upgrades.   In particular, the brief contends that EPA had no legal basis in requiring UBWPAD to spend an additional $200 million in treatment plant upgrades to achieve the new nutrient limits before the completion of an already underway $180 million upgrade.  NACWA argues that this action by EPA is not justified and demonstrates a clear lack of appropriate prioritization of limited clean water utility resources.  The brief also supports UBWPAD’s contention that EPA erred in assigning the contested nutrient limits because it lacked a sound scientific basis and failed to demonstrate that the limits were necessary to achieve water quality standards.
The case stems from a permit issued to UBWPAD in 2008 and the litigation seeks to have the federal appeals court remand the permit back to EPA.

NACWA, Key Municipal Groups Head to U.S. Supreme Court on Critical Clean Water Act Case

NACWA joined with a number of other municipal clean water organizations to file a brief in late September with the U.S. Supreme Court in an important case examining whether the Clean Water Act (CWA) allows for pre-enforcement judicial review of administrative orders (AOs) issued by EPA.  The litigation, Sackett v. EPA, stems from a lower court ruling by the U.S. Court of Appeals for the Ninth Circuit finding that the CWA prohibits pre-enforcement review of EPA administrative orders.  Oral arguments before the High Court are scheduled for January 2012.

The brief was filed by NACWA and its municipal partners in support of the petitioners and urges the Court to overturn the Ninth Circuit's decision and find that the CWA allows for pre-enforcement review of EPA administrative orders.  In particular, the brief argues that the CWA does not explicitly or implicitly prevent review of AOs and highlights examples of how EPA has abused its power in issuing AOs to public clean water agencies.  The brief also provides examples of how EPA uses AOs to circumvent the clear protections in the NPDES permit program that shield permitted entities from unreasonable enforcement actions.  The brief encourages the Supreme Court to curb these abuses by allowing for pre-enforcement judicial review of AOs and argues that the denial of pre-enforcement review of administrative orders violates the due process clause of the U.S. Constitution.  Other municipal clean water organizations on the brief include the Wet Weather Partnership, state municipal wastewater associations from Virginia, Maryland, North Carolina and South Carolina, and the City of New York.

NACWA Submits Brief Supporting Utility Member in St. Louis Stormwater Fee Appeal

NACWA filed a brief September 16 with the Missouri Court of Appeals supporting Association member agency the Metropolitan St. Louis Sewer District (MSD) in a critical lawsuit addressing whether utility fees for municipal stormwater services properly qualify as reasonable service charges or impermissible taxes.  NACWA’s brief argues that the use of impervious surface to calculate stormwater service charges – as done by MSD in their stormwater program – is increasingly becoming the industry standard for calculating stormwater fees in the most equitable manner.  Additionally, the NACWA brief argues that many other states around the country have already determined that stormwater fees qualify as reasonable service charges and not taxes.  It also highlights the fact that Congress has passed legislation amending the CWA to clarify that municipal stormwater fees based on impervious surface area qualify as appropriate service fees for payment by federal government facilities.

The litigation stems from a 2010 decision by a Missouri trial court finding that MSD’s stormwater utility fees were illegal taxes, thereby invalidating the utility’s entire stormwater fee program.  MSD appealed the decision and NACWA’s brief supporting the utility argues that the trial court’s decision suffered from fundamental legal flaws regarding the nature of municipal stormwater service and fees.  The issues involved in this litigation have significant national implications for other municipal stormwater utilities using a similar fee structure.  NACWA is participating in the case to push back against any negative legal precedent regarding the use of impervious surface as a basis for stormwater charges.  The American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA) also joined NACWA on the brief.

Board Approves Participation in Litigation Over Federal Payment of Stormwater Fees

NACWA’s Board in mid-November approved filing an amicus brief early next year on behalf of Association member the City of Vancouver in litigation with the federal government over the failure of a federal facility to pay past due municipal stormwater fees.  NACWA’s participation in this case is necessary to defend the Association’s hard-fought victory last year in securing passage of S. 3481 , which amended section 313 of the Clean Water Act to clarify that federal government facilities are responsible for paying local stormwater service charges.  This issue has come to a head in Washington State where the City of Vancouver attempted to collect approximately $100,000 in past due stormwater fees earlier this year from the Bonneville Power Administration (BPA), a federal government agency with facilities in Vancouver’s stormwater service area.   BPA refused payment of the fees, and in July the U.S. Department of Justice (DOJ) on behalf of BPA filed a lawsuit against Vancouver as well as the City of Renton in federal court requesting a declaratory judgment that S. 3481 does not apply to past due stormwater amounts.  Additionally, DOJ is seeking a refund of approximately $440,000 in previously paid stormwater fees to Vancouver prior to passage of S. 3481 that the federal government now claims were illegal taxes levied by the city.

NACWA’s amicus brief will emphasize that S. 3481 simply clarified an existing obligation for federal government agencies to pay local stormwater fees, as opposed to creating a new obligation, and thus requires payment of past due amounts.  NACWA’s brief will focus on the legislative history surrounding S. 3481 as well as existing case law to bolster the argument that Congress intended for the bill to mandate payment of unpaid stormwater charges.  Additionally, the brief will highlight the significant financial challenges Vancouver will face if the federal government is successful in securing a refund of stormwater fees paid prior to January 2011, as well as the dangerous precedent this would set for other municipal stormwater utilities across the country.  Briefing in the case is expected to occur sometime in early 2012.

No Ruling Yet in Florida Nutrient Criteria Case

NACWA continues to await a ruling on its June 15 amicus brief in Florida Wildlife Federation, et al v. EPA, which is a challenge to numeric nutrient criteria developed by EPA for freshwater lakes, streams, and rivers in the State of Florida.  The brief outlines NACWA’s position in the growing legal fight over EPA’s recently developed numeric nutrient criteria for Florida and supports the Association’s Florida member utilities in their Motion for Summary Judgment challenging the new nutrient regulations.  The NACWA brief argues that EPA’s actions in Florida are fundamentally inconsistent with the limited role that Congress envisioned under the CWA for federal involvement in establishing WQS, especially for nutrients.  NACWA further alleges that EPA’s decision to impose limits on Florida illegally usurped the state’s primary role in establishing nutrients limits and will have significant national implications by setting a negative precedent for the potential federalization of nutrient WQS beyond Florida.

The case is part of a broad challenge to EPA’s federalization of Florida’s nutrient criteria, which the Agency finalized in November 2010.  Florida is currently developing its own nutrient criteria, and EPA indicated in a November letter to the state that the Agency would consider allowing the state standards to replace the current federal standards once the state work is complete.  It is unclear at this time what effect such a decision by EPA would have on the current litigation.  In the meantime, a ruling from the court on the summary judgment motions is expected soon.

Akron Consent Decree Litigation Still on Hold

The appeal by NACWA member the City of Akron, Ohio of a federal district court decision to reject a proposed wet weather consent decree continues to be on hold while a mediator attempts to resolve the underlying issues in the litigation.  The U.S. Court of Appeals for the Sixth Circuit has placed the case in abeyance pending discussions between the court’s mediator and the original district court judge about reconsidering the rejection of the negotiated decree.  The case stems from a March 2010 decision by the district court judge to reject the decree even though it had been agreed to and was supported by the City, the federal government, and the state government.  Akron has filed an appeal of the district court’s decision not to enter the decree with the Sixth Circuit, and NACWA will be filing an amicus brief in support of the city’s appeal.

NACWA’s brief will highlight the importance of district court judges granting deference to the consent decree negotiation process, especially to a decree that has been mutually agreed to by the municipality and the federal and state governments after engaging in a comprehensive negotiation process.  The brief will also discuss from a national perspective how disruptive it will be to the overall consent decree negotiation process if cities cannot rely on the federal courts to approve agreements they reach with federal and state regulators.  Additionally, the brief will outline the significant problems that occur when federal judges attempt to substitute their views on highly technical consent decree matters such as engineering designs and financial capability assessments for those of municipal, federal, and state experts as agreed upon during the consent decree negotiation process.

ISSUES OF INTEREST

EPA to Develop Framework on Integrated Planning & Regulatory Prioritization

EPA issued a memorandum October 27 to its Regional Administrators and regional water and enforcement office directors outlining its plans to develop an integrated planning framework.  The framework is intended to help clean water agencies identify cost-effective and protective solutions to meet their CWA wastewater and stormwater obligations, and then prioritize their investments to address the most pressing water quality issues first.  The memo sends a strong message that EPA is serious about considering all of a municipality's CWA obligations together and evaluating implementation from both an environmental and cost standpoint.  The framework, when drafted, will identify 1) the essential components of an integrated plan; 2) steps for identifying municipalities that might make best use of such an approach; and 3) how best to implement the plans together with the states under the CWA permit and enforcement programs.  The October 27 memorandum and forthcoming framework were inspired by the momentum NACWA has generated through its Money Matters™ campaign and related efforts spearheaded by the U.S. Conference of Mayors.

NACWA will be hosting a meeting on December 13 with senior EPA official including Nancy Stoner, Assistant Administrator for Water, and Cynthia Giles, Assistant Administrator for Enforcement and Compliance Assurance, to further discuss how the Agency will move forward with this important effort.  NACWA will be actively engaged with EPA over the coming weeks and months to provide guidance and input as the framework is developed, and to ensure that the ultimate end product is the best possible result for the municipal clean water community. NACWA will use the considerable resources available through the Association’s Legal Affairs committee to address any legal issues that might arise during the process, as well as to explore how this integrated planning effort could impact the consent decree process.

EPA Announces Plan to Pursue Formal Rulemaking on Clean Water Act Jurisdiction

NACWA attended two EPA intergovernmental briefings in recent weeks where the Agency announced it is currently working with the Army Corps of Engineers on a formal rulemaking process to further clarify federal jurisdiction under the CWA.  This announcement comes on the heels of draft guidance on CWA jurisdiction released by EPA in late April.  The Agency indicated during the recent briefings that it received nearly 250,000 public comments on the guidance and that the vast majority of those comments encouraged EPA to pursue on formal rulemaking on jurisdiction.  In response to those comments, EPA and the Corps have decided to pursue a rulemaking and are already working on language for a draft rule.

The timeline for the rulemaking process is not clear, but EPA suggested a draft of the rule would likely be released for public comment sometime early next year – with a goal of finalizing the rule by the end of 2012.  It is also unclear exactly how the rule will impact the draft guidance.  EPA staff indicated that while they have not abandoned the guidance, they are also not actively working on it, and instead are focused on the rulemaking effort.  It seems unlikely the Agency will finalize the guidance anytime soon.  The Agency may not finalize it at all if things move quickly toward a final rule.

NACWA previously commented on the draft guidance and will track the rulemaking process very closely, including submitting comments at the appropriate time.