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The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Summer 2012 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 web page.

NACWA Legal Affairs Committee Convenes at Summer Conference

The NACWA Legal Affairs Committee met in July as part of the Association’s 2012 Summer Conference.  A key focus during the meeting was a discussion of recent innovative agreements that cities such as Philadelphia, Atlanta, and Seattle have reached with EPA regarding enforcement and consent decree issues, and an examination of what these developments may signal from a legal perspective for the larger municipal clean water community.  The committee’s conversation was enhanced by a presentation from host city Philadelphia on their “Partnership Agreement” with EPA, signed earlier this year in lieu of a federal consent decree.  Committee members then engaged in a robust discussion about the legal implications – particularly from an implementation standpoint – of EPA’s final integrated planning framework document, and how clean water utilities can use the framework to further advance the existing flexibility that seems to be emerging in EPA’s enforcement approach.  Other topics addressed during the meeting included an update of ongoing NACWA litigation matters, with a focus on two recent nutrient lawsuits addressing the Mississippi River Basin and possible changes to EPA’s secondary treatment regulations in which NACWA is closely involved.  Handouts from the committee meeting at the Summer Conference are available on NACWA’s website.

2012 Law Seminar to Deliver Engaging, Educational Program

Planning is well underway for NACWA’s 2012 Developments in Clean Water Law Seminar, which will be held November 14-16, 2012 at the Westin Seattle in Seattle, Washington.  As in past years, the agenda promises to cover a wide range of legal and regulatory challenges impacting clean water utilities, and will be relevant to any attorney or public agency manager working on municipal wastewater and stormwater issues.  Topics planned for this year include a look at the legal implications of EPA’s integrated planning effort, a review of recent developments involving wet weather consent decrees, discussion of key nutrient legal issues and lawsuits, stormwater legal developments, and a review of the most important Clean Water Act (CWA) cases of the past year.  A draft agenda and information on registration and Continuing Legal Education (CLE) credits will be available very soon on NACWA’s website at www.nacwa.org, so stay tuned. We hope to see you in Seattle!

CURRENT CASES

NACWA Files Opening Brief in Litigation Challenging Final SSI Rule

NACWA filed its opening brief July 25 in NACWA v. EPA with the U.S. Court of Appeals for the District of Columbia Circuit, completing a significant step forward in the Association’s ongoing efforts to challenge EPA’s recent sewage sludge incinerator (SSI) rule.  The lawsuit, initiated by NACWA last year, seeks judicial review of the recent SSI regulations and marks one of the most significant legal advocacy initiatives in the Association’s history.  NACWA’s brief challenges both the legal and technical basis for EPA’s final SSI rule, and requests the court vacate the rule as a violation of EPA’s authority under the Clean Air Act (CAA).

A detailed analysis of the brief can be found in Advocacy Alert 12-11, and additional information regarding the SSI lawsuit can be found on NACWA’s Litigation Tracking web page including relevant pleadings and documents.

NACWA’s brief addresses two major categories of fatal errors in the SSI rule that require it to be judicially vacated.  The first category focuses on EPA exceeding its statutory authority and violating Congressional intent by regulating SSIs under the wrong section of the CAA.  Specifically, the brief focuses on EPA’s decision in the final rule to regulate SSIs under Section 129 of the CAA, which requires very strict and costly air emissions standards and siting analyses, rather than under the more flexible requirements of CAA Section 112 as instructed by Congress.

The second category of errors in the SSI rule outlined in the brief focuses on EPA’s use of inadequate data to develop the SSI emissions limits, in violation of the CAA’s minimum data requirements.  Under this line of argument, NACWA’s brief contends that even if EPA had the authority to regulate SSIs under §129, the rule still violates the CAA by setting pollutant limits using data from fewer than the statutorily mandated number of units.

EPA is scheduled to file it brief responding to NACWA’s arguments in mid-October.  Additional briefing, including NACWA’s reply brief as well as intervenors’ briefs, will be filed in November and December.  All substantive briefing will be completed by the end of December, with final documents submitted in early January 2013.  Oral arguments in the case have not yet been scheduled, but will likely occur in March or April.

Secondary Treatment Lawsuit Suspended, NACWA Continues Participation in Mississippi River Nutrients Case

NACWA continues it active involvement in two federal nutrient lawsuits that could have direct impacts on clean water utilities.  The most recent development occurred in litigation over EPA’s secondary treatment regulations, Natural Resources Defense Council (NRDC) v. EPA, when the parties agreed on August 9 to transfer the case to the suspense docket in anticipation of EPA responding to NRDC’s underlying secondary treatment petition by December 14, 2012.  Once EPA provides a response, the parties will work on crafting a joint order to dismiss the case, which could end the litigation.  EPA has not committed to what the substance of the petition response might be, only that it will be provided in December.

The litigation was initiated by NRDC in March, alleging that EPA’s lack of response to a 2007 NRDC petition requesting changes to the secondary treatment regulations to include nutrient removal constituted an unreasonable delay.  NACWA’s Board of Director’s approved Association intervention in the suit if necessary, and NACWA has had significant conversations with EPA and the Department of Justice (DOJ) regarding the case over recent months.  These conversations have been very productive and provided NACWA with an opportunity to influence the Agency’s response to the lawsuit, including placing the case in suspense as opposed to a settlement agreement.  NACWA stands ready to intervene in the case moving forward if necessary, although it is likely the case will be dismissed as moot once EPA responds to the underlying petition.  NACWA believes EPA’s work on a substantive response to the petition is moving in a positive direction, and will be in close contact with the Agency over the coming months to provide information and assistance where appropriate as EPA drafts its response.

NACWA also continues its active participation in Gulf Restoration Network v. EPA, supporting EPA in a challenge to the Agency’s denial of a petition from activist groups seeking the establishment of federal numeric nutrient criteria (NNC) and nutrient total maximum daily loads (TMDLs) for all waters in the Mississippi River Basin (MRB).  NACWA requested and was granted intervention in the case in late May.  A number of additional parties have intervened in the case over the past two months, including agricultural interests, industrial dischargers, and several states within the MRB.  EPA filed a robust administrative record in the case on August 17, and the parties will be crafting a proposed briefing schedule within the next few weeks.  NACWA’s advocacy efforts will focus on ensuring the perspective of the municipal clean water community is adequately represented in the litigation going forward.  Additional information on NACWA’s involvement in this case is available in Advocacy Alert 12-08.

Association Files Reply Brief in Chesapeake Bay TMDL Litigation

NACWA and its municipal partners submitted a reply brief July 13 in federal litigation over the final TMDL for the Chesapeake Bay, reiterating the Association’s support for inclusion of all sources of water quality impairment in the final TMDL allocations.  The brief argues that the holistic, watershed approach embodied in the final TMDL, including allocation for non-point agricultural sources, provides the greatest potential for equitably, cost-effectively, and successfully restoring the tens of thousands of water bodies nationwide that are affected by excessive pollutant loads.  The brief also highlights the significant harm municipal point sources in the Bay would suffer if the non-point source contributors are removed from the TMDL.

Additionally, the brief pushes back against arguments made by the agriculture plaintiffs that EPA exceeded its statutory authority in establishing the TMDL, arguing EPA’s actions were entirely legal given the participation and consent of the Bay states in developing and implementing the TMDL.  The Maryland Association of Municipal Wastewater Agencies (MAMWA) and the Virginia Association of Municipal Wastewater Agencies (VAMWA) joined NACWA on the brief.  The briefing process in the case is now complete and oral arguments are scheduled for October 4.

NACWA Submits Brief in Biosolids Land Application Case

NACWA filed a brief August 9 with a California appeals court supporting a number of Association member agencies from Southern California in a legal challenge to a discriminatory ban on land application of biosolids.  NACWA’s brief in City of Los Angeles, et al. v County of Kern encourages the court to affirm an earlier injunction against land application restrictions initiated by Kern County, Calif., and reiterates the Association’s longstanding opposition to such illegal bans.  The brief explains that land application is critical for many clean water utilities to meet their environmental and recycling mandates, especially in California, and provides a national perspective on the valuable role land application plays in biosolids management.  The brief also outlines the stringent regulatory process already in place to ensure land application is protective of both the environment and public health, and highlights the significant harm clean water utilities around the country would suffer if inappropriate land application bans such as Kern County’s are allowed to stand.

NACWA previously participated in litigation over the Kern County ban in federal court, although that case was ultimately dismissed on an unrelated legal technicality.  The municipal plaintiffs then re-filed in state court and quickly obtained a preliminary injunction against the ban.  The County is now challenging that injunction before a state appellate court.  NACWA is pleased to continue its support in this critical case.  Additional background on the case is available on the Litigation Tracking page.

Appeals Court Issues Unfortunate Ruling in Upper Blackstone Permit Appeal

The First Circuit Court of Appeals issued a ruling August 3 in litigation over federally-imposed nutrient requirements in a municipal National Pollutant Discharge Elimination System (NPDES) permit, denying a utility challenge and upholding EPA’s nutrient limits.  The decision in Upper Blackstone Water Pollution Abatement District (UBWPAD) v. EPA found that EPA is entitled to significant deference when establishing permit discharge limits, even where there may be existing uncertainty regarding the data and modeling for water quality in the receiving waterbody.  The court noted that EPA is entitled to exercise its judgment when setting permit limits in the face of scientific uncertainty, and that courts should not second-guess this judgment as long as EPA follows proper procedure and acts with a reasonable basis.  The court further concluded that EPA’s actions in the current case were reasonable and justified, and thus upheld the challenged permit and nutrient limits.

NACWA filed a brief in the case supporting Member agency UBWPAD’s challenge to the permit, and is disappointed with the court’s decision.  NACWA believes the ruling misreads a number of key elements in the CWA, and is unnecessarily deferential to EPA on some critical legal issues.  NACWA is also concerned about the potential impact this decision could have elsewhere in Region 1, and in other parts of the country, particularly with regard to nutrient limits in discharge permits.  UBWPAD is planning to request rehearing of the court’s decision with the First Circuit, and NACWA stands ready to assist in this case in any way necessary moving forward.

NACWA to Participate Before U.S. Supreme Court in Stormwater Discharge Case

NACWA plans to join with a number of other municipal interests to file a brief in mid-September  with the U.S. Supreme Court in litigation over what qualifies as a stormwater discharge under the CWA.  The brief in Los Angeles County Flood Control District v. NRDC will outline the municipal perspective for the High Court in this important CWA case, including potential review by the Court of the water transfers issue.  The Supreme Court has previously ruled that transfers of water from one section of a waterbody to another do not qualify as a CWA discharge requiring a permit, and the municipal brief will urge the Court to reaffirm its prior legal finding.  The brief also will explain why many municipal clean water agencies rely on such transfers for safe and effective management of stormwater, floodwater, and public water supply.  Additionally, it will argue that requiring CWA permits for these kinds of transfers would create significant regulatory and economic burdens for clean water agencies, unnecessarily harming the ability of utilities to successfully manage stormwater.  The brief will be authored by NACWA member the City of New York, and multiple water associations in addition to NACWA are expected to join as signatories.

ISSUES OF INTEREST

EPA Releases Final Integrated Planning Framework

EPA released its final integrated planning framework in June.  NACWA is encouraged by the changes made to the final document which, though generally minor, are positive overall and address many of the concerns NACWA raised during the stakeholder meetings and public comment process.  Advocacy Alert 12-10 provides a brief summary of all the changes made to the framework and an update on current efforts underway among the clean water community to implement integrated planning.

Following the release of the framework, NACWA thanked Nancy Stoner, Acting Assistant Administrator for Water and Cynthia Giles, Assistant Administrator for Enforcement and Compliance Assurance, for their continued leadership on the issue of integrated planning in a letter , stressing the significance of their “offices’ collective efforts…[to bring to] bear quick and effective policy-making that promises to provide significant and badly needed flexibility for many in the clean water community.”  As NACWA’s letter highlights, “[w]ork to ensure that EPA’s framework succeeds…is just beginning.”  Demonstrating that this framework can succeed will be crucial to its long-term effectiveness, and NACWA encouraged EPA to continue to be an active participant as implementation proceeds, while also working to ensure that authorized states have the lead and that state decisions are not second-guessed.

Tough questions remain including whether large, regional wastewater authorities, without control over stormwater or much of their collection systems, will be able to take advantage of the framework.  To what extent communities with existing consent decrees will be able to take advantage of EPA’s new, more flexible thinking is also in question.  NACWA’s letter notes the Association’s interest in continued work with EPA over the coming months to “ensure the framework can benefit as many as possible in the clean water community.”

NACWA Letter Supports Atlanta Consent Decree Extension

NACWA submitted a letter to the U.S. Department of Justice strongly supporting a recent consent decree modification and extension for Association member the City of Atlanta.  The proposed modification, which is currently undergoing public comment, would extend the end date of Atlanta’s current wet weather consent decree by 13 years to 2027(see May 18 Clean Water Current for additional background).

NACWA’s letter applauds the City, DOJ, and EPA for reaching agreement on the extension, which recognizes the significant investment already made by Atlanta in reducing sewer overflows – while also acknowledging the substantial economic challenges facing the city and its ratepayers in completing the decree.  The letter notes that the schedule extension strikes an appropriate balance between making sewer system improvements in a cost-effective, prioritized approach while also protecting public health and the environment.  The agreement is entirely consistent with NACWA’s ongoing efforts to secure additional flexibility for clean water agencies in meeting their wet weather and CWA obligations.  NACWA is pleased to support Atlanta’s proposed consent decree modification and is hopeful that it will soon be approved in federal court.

New Lawsuit Challenges Flow TMDL for Stormwater

A new federal lawsuit filed last month by the Commonwealth of Virginia and Fairfax County, Virginia against EPA challenges a flow-based TMDL for stormwater discharges.  In the complaint, the state and municipal plaintiffs argue that EPA’s use of flow as a pollutant surrogate in the TMDL exceeds the Agency’s statutory authority under both the CWA and the Administrative Procedure Act.  The complaint also alleges series technical flaws in the TMDL.  A key exhibit included with the complaint as part of the legal challenge is EPA’s controversial November 2010 memo on use of flow as a surrogate in stormwater TMDLs.  NACWA will be closely monitoring the case and will evaluate participation at the appropriate time.

Federal Court Blasts EPA Use of Guidance Documents in CWA Case

A recent federal court decision slammed EPA’s use of guidance documents instead of formal rules to implement CWA regulations, finding EPA’s efforts to establish binding regulatory requirements through guidance to be illegal.   The court’s decision in National Mining Association v. EPA noted that EPA attempts to treat guidance documents as establishing enforceable rules or standards violate federal law, and that such binding requirements can only be created through a formal rulemaking process with public notice and comment.  Although the facts of the case dealt with mining issues, the court’s larger holding could be very helpful to the clean water community in other CWA contexts in the future when litigation EPA guidance documents.