» Update Archive

The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Fall 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 Completes Successful 2012 Law Seminar

Over 100 clean water attorneys, professionals, and utility managers from around the country gathered in Seattle November 14 - 16 to discuss critical legal and regulatory challenges facing the clean water community as part of NACWA’s 2012 Developments in Clean Water Law Seminar. The three day program featured top legal experts from around the country covering a wide range of key issues impacting municipal wastewater and stormwater utilities.

The Seminar kicked off with a speech by Ken Kopocis, senior advisor in EPA’s Office of Water and the pending nominee for Assistant Administrator for Water, who presented an EPA perspective on current clean water challenges facing municipal utilities.  This was followed by a detailed panel discussion of EPA’s integrated planning framework and how clean water utilities can utilize it to their best advantage.  Senior EPA staff from the Agency’s Office of Water and Office of Enforcement & Compliance Assurance (OECA) took part in the panel, outlined key elements of the framework and addressed a number of common questions that have been generated by the document.

Other topics addressed at the Seminar included enforcement and consent decree developments, nutrients, stormwater, Clean Water Act (CWA) interaction with other federal environmental statutes, and a review of the most important CWA legal cases of the past year.  Reviews from the Seminar were very positive, and NACWA looks forward to hosting another successful conference next year.  Handouts and presentations from the Seminar are available on NACWA’s website.

Legal Affairs Committee To Meet At 2013 Winter Conference

The next meeting of the NACWA Legal Affairs Committee will occur on February 4, 2013 as part of NACWA’s 2013 Winter Conference in Miami, Florida.  A draft agenda for the meeting will be circulated in January, and anyone with suggested agenda items is encouraged to 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, including registration and hotel details, is available on NACWA’s website.  We hope to see all of you in Miami!

CURRENT CASES

NACWA Continues Lead Role in SSI Litigation

NACWA continued its aggressive advocacy in litigation over EPA’s final sewage sludge incinerator (SSI) rule, filing a brief on November 5 in NACWA v. EPA with the U.S. Court of Appeals for the District of Columbia Circuit contesting calls from environmental activists for even more stringent SSI emission limits.  The lawsuit, initiated by NACWA last year, seeks judicial review of recent SSI regulations and marks one of the most significant legal advocacy initiatives in the Association’s history.  NACWA is challenging both the legal and technical basis for EPA’s final SSI rule, and is requesting the court vacate the rule as a violation of EPA’s authority under the Clean Air Act (CAA).  Additional information regarding the SSI lawsuit can be found on NACWA’s Litigation Tracking web page including relevant pleadings and documents.

NACWA’s Nov. 5 intervenors brief pushes back against arguments made by the Sierra Club, another party to the litigation, that the final SSI rule was not strict enough.   The Association’s filing reiterates the key legal flaws with the SSI rule – namely that it was developed under the wrong section of the Clean Air Act (CAA) – and highlights Sierra Club’s fundamental misunderstanding about the proper statutory structure for appropriate regulation of SSIs.  Additionally, the brief argues that EPA was correct to reject Sierra Club’s request for even more stringent “beyond the floor” emission limits as part of the final rule.

EPA submitted its brief in the litigation on October 22.  The Agency’s brief defends the rule as being both legally and technically sound, and its arguments in favor of the rule are consistent with its prior positions.  Some of EPA’s contentions – particularly with regard to NACWA’s statutory claims –  are weaker than anticipated and provide NACWA with excellent opportunities to push back on the Agency’s position.  EPA also failed to address a number of critical NACWA-identified weaknesses in the SSI rule, suggesting serious vulnerabilities in the rule’s statutory underpinnings.

NACWA’s reply brief in the case will be filed on December 6, and will contest arguments raised by both EPA and Sierra Club.  Oral arguments are expected to be schedule in early 2013, and a decision from the court is expected by late Spring/early Summer of 2013.

Amicus Brief Submitted in “Flow TMDL” Litigation

NACWA filed a brief November 16 in federal litigation over EPA’s use of total maximum daily loads (TMDLs) for flow in municipal stormwater permits, arguing that the Agency’s regulation of flow as a surrogate for pollutants under the CWA is improper.  NACWA’s brief in Virginia Department of Transportation, et al. v. EPA echoes arguments the Association has made previously about the inappropriate use by the Agency of “flow TMDLs” for municipal stormwater, leading to flow limits in municipal separate storm sewer system (MS4) permits.  In particular, the NACWA brief reiterates concerns over EPA’s controversial November 2010 memo , which suggested that states should use flow as a pollutant surrogate to establish numeric effluent limits in MS4 permits.  The November 2010 memo is included in the current litigation by the plaintiffs in their complaint.  NACWA’s brief seeks to provide a national perspective on the significant flaws in the document, as well as EPA’s overall procedural approach in developing flow TMDLs.

The litigation was brought by the Commonwealth of Virginia and NACWA member Fairfax County, Virginia.  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.  NACWA was joined on the brief by the American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA).

NACWA, Municipal Partners Represented at Oral Arguments in Chesapeake Bay TMDL Litigation

A federal court in Pennsylvania heard arguments October 4 in a legal challenge to EPA’s TMDL for the Chesapeake Bay, with NACWA and its municipal association partners from Maryland and Virginia participating in the proceedings and arguing in favor of a holistic watershed approach to improving water quality.  Nearly five hours of argument were held by the court in American Farm Bureau, et al. v. EPA, which is a challenge by agricultural interests to EPA’s inclusion of nonpoint sources as part of the final Bay TMDL.

NACWA, the Maryland Association of Municipal Wastewater Agencies (MAMWA), and the Virginia Association of Municipal Wastewater Agencies (VAMWA) jointly intervened in the litigation last year to represent the municipal clean water community and were active participants during the oral arguments.   During the hearing, the presiding judge seemed especially skeptical of arguments advanced by the agricultural plaintiffs.  She also expressed concern about the practical impacts on municipal point source dischargers if the nonpoint source allocations under the TMDL were invalidated, echoing a central theme of the NACWA briefs.

NACWA and its municipal partners filed an opening brief and reply brief in the case, reiterating the Association’s support for inclusion of all sources of water quality impairment in the final TMDL allocations.  The briefs argue that the holistic, watershed approach embodied in the final TMDL, including allocation for nonpoint agricultural sources, provides the greatest potential for equitably, cost-effectively, and successfully restoring the tens of thousands of water bodies nationwide that are impacted by excessive pollutant loads.  A decision from the court is expected within the next few months.

Board Approves Intervention in Trading Lawsuit

The NACWA Board of Directors on November 12 approved Association intervention in a lawsuit filed by environmental activist groups on October 3 challenging the water quality trading program in the final Chesapeake Bay TMDL.  The complaint in Food and Water Watch, et al. v. EPA alleges that the trading program created by the Bay TMDL – and by extension all trading programs nationally – are illegal under the CWA, including trades between point sources as well as those between point and non-point dischargers.  This case has the potential to impact trading programs involving wastewater treatment plants as well as stormwater sources, and has implications not just for the Chesapeake Bay region but for all water quality trading efforts nationally.  NACWA’s participation in this lawsuit will help defend EPA’s use of trading programs as an effective way to address water quality concerns, push back against the plaintiffs’ misguided attack on trading programs, and ensure the perspective of the municipal clean water community is aggressively represented.  Intervention papers will be filed soon.

NACWA Weighs in with U.S. Supreme Court on Stormwater Case

NACWA joined with other municipal and clean water interests in September to file a brief 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 outlines the municipal perspective for the High Court in this important case, and includes a request for 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.  The municipal brief urges the Court to reaffirm its prior legal finding.

The brief outlines why such water transfers do not constitute a “discharge” under the CWA, and why the permitting of such transfers would be inconsistent with the requirements of the Act.  The brief also explains that many municipal clean water agencies rely on such transfers for safe and effective management of stormwater, floodwater, and the public water supply.  It further argues that requiring CWA permits for these kinds of transfers would create significant regulatory and economic burdens for clean water agencies, and would unnecessarily harm their ability to manage stormwater successfully.  The brief was authored by NACWA member the City of New York, and was signed by multiple water associations in addition to NACWA including the Water Environment Federation (WEF) and the Association of Metropolitan Water Agencies (AMWA), among others.  Oral arguments before the High Court in the case are scheduled for December 4.

Amicus Brief Planned to U.S. Supreme Court in Key Nutrient Litigation

NACWA plans to submit an amicus brief early next year supporting Supreme Court review of Upper Blackstone Water Pollution Abatement District (UBWPAD) v. EPA, a key nutrients case with national implications.  This follows a decision in late September by the U.S Court of Appeals for the First Circuit to denying rehearing in the case.  The court issued a ruling in August denying Upper Blackstone’s permit challenge.  The decision 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, as well as a second brief supporting rehearing, and is disappointed with the court’s decision.  NACWA believes the ruling wrongly decided two questions of significant national importance to municipal clean water utilities. First, the NACWA contends the court incorrectly found that EPA and other permitting authorities must issue new discharge permits under the CWA every five years.  NACWA’s brief supporting rehearing pointed out that current regulations allow for continuance of expired permits where necessary for a variety of reasons, and that the ability to administratively continue permits is critical to the effective operation of the permitting system.  Second, NACWA believes the court misinterpreted EPA’s regulation on how permitting authorities derive numeric permit limits based on narrative water quality standards.  Since this is the first federal appellate court to examine this issue, the brief highlights the importance of making sure the court’s decision is correct.   NACWA looks forward to addressing these concerns in its brief before the U.S. Supreme Court and is hopeful the Court will accept the case for review.

Oral Arguments Scheduled in Stormwater Fee Litigation

NACWA plans to participate in oral arguments scheduled for November 30 in litigation over lack of payment by federal government facilities of municipal stormwater fees.  The case in DeKalb County, Ga. v. United States involves over $280,000 in unpaid stormwater bills from a number of different federal government facilities, and was filed by the county in the U.S. Court of Federal Claims in November 2011 to pursue the past due amounts.  NACWA filed an amicus brief in early May supporting DeKalb County in its litigation and emphasizing the national perspective on this important issue.  The brief reiterated that a recent CWA stormwater amendment simply clarified a long-standing obligation of federal agencies to pay these fees, thus mandating payment of past due amounts.  The NACWA brief also highlighted the significant financial challenges that DeKalb County will face if the federal facilities do not pay these fees, as well as the dangerous precedent this would set for other municipal stormwater utilities across the country.

NACWA won a strong victory earlier this year in a related federal lawsuit from Washington State, and is hopeful the court in the DeKalb case will reach a similar conclusion.  NACWA intends to rely heavily on the points made in its amicus brief and on the existing court decision during participation in oral arguments.

Plaintiffs File Opening Brief in Mississippi River Nutrients Case; Answer on Secondary Treatment Petition Still Expected Mid-December

Environmental activists plaintiffs filed their motion for summary judgment and opening brief on November 19 in Gulf Restoration Network v. EPA, outlining the legal basis for their challenge to the Agency’s denial of a petition seeking the establishment of federal numeric nutrient criteria (NNC) and nutrient TMDLs for all waters in the Mississippi River Basin (MRB).  The plaintiffs argue that EPA’s denial of their petition was procedurally deficient, and that EPA’s decision not to impose federal NNC for the MRB is illegal and in violation of the CWA.  NACWA requested and was granted intervention in the case in late May, and has been engaged in discussions with other parties and intervenors in the litigation over recent months.  Additional information on NACWA’s involvement in this case is available in Advocacy Alert 12-08.  Under the current scheduling order, NACWA will join with other intervenors on a joint brief, but also has secured the ability to submit a NACWA-only brief as well to ensure the specific interests of the municipal clean water community are represented in the case.  Intervenor briefs will be due in late February 2013.

In a related matter, NACWA continues to monitor developments in Natural Resources Defense Council (NRDC) v. EPA, which is litigation over EPA’s secondary treatment regulations.  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.   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.   NACWA’s Board of Directors approved Association intervention in the suit, although the need for intervention was obviated once the case was placed in abeyance.  Recent indications suggest EPA is planning to deny the petition, and NACWA submitted a recent letter encouraging the Agency to do so.  NACWA stands ready to take whatever legal action is necessary once the petition response is released to protect the interests of the municipal clean water community.

Water Transfers Case Dismissed for Lack of Jurisdiction

U.S Court of Appeals for the Eleventh Circuit issued an order on October 26 dismissing consolidated petitions related to EPA’s 2008 Water Transfers Rule (WTR).  This rule provides that transfers of water do not require a discharge permit under the CWA, so long as the transfers themselves do not subject the transferred water to any intervening commercial, industrial, or municipal use.  A number of environmental activists groups challenged the rule, and those challenges were consolidated in the Eleventh Circuit.  However, the court dismissed the case on jurisdiction grounds, finding that the appropriate venue for such challenges is at the federal district court level.  NACWA has long supported the WTR and joined on New York City’s amicus brief in the case in support of the rule.  EPA is currently considering its options as a result of the Eleventh Circuit ruling, but a number of environmental groups are already seeking to move forward with challenges to the rule in district court.  NACWA will continue to track developments and will work to defend the rule as necessary.

NACWA to Participate in Two State Court Cases on Stormwater Fees

NACWA will be submitting briefs in the coming weeks in two state court cases to help defend municipal stormwater fee programs that are based on the use of impervious surface.   The first case, Zweig v. Metropolitan St. Louis Sewer District (MSD), is in Missouri and deals with a challenge to a stormwater program instituted by NACWA member MSD.  NACWA previously submitted a brief in the case in September 2011 supporting the utility in appealing a negative trial court decision.  Unfortunately, in March 2012 the appeals court ruled against MSD, and NACWA filed a statement in support of transfer of the case to the Missouri Supreme Court.  In a positive turn of events, the state supreme court accepted the case for review in late October.  NACWA will be filing another amicus brief in the case in mid-December, very similar to its previous submissions and arguing in favor of the MSD fee program.

The second case is in Ohio, where NACWA will be filing an amicus brief in support of member agency the Northeast Ohio Regional Sewer District (NEORSD).  NEORSD has instituted a similar stormwater fee program based on impervious surface, which has also been challenged by local ratepayers and property owners.  NEORSD successfully defended its fee program at the trial court level, and is now seeking to preserve that victory at the appellate level.  NACWA will be filing an amicus brief similar to its briefs in the Missouri case, arguing in favor of fee programs based on impervious surface and providing a national perspective on the growing use and importance of these types of programs all across the country.  The brief will likely be filed in early January.

ISSUES OF INTEREST

Clean Water Agencies, State Regulators, EPA Meet to Discuss Integrated Planning

In the first of what will be a series of regional workshops, clean water agencies and state regulators from the EPA Region 3 states gathered October 24 in Washington, DC, with EPA Headquarters and Region 3 staff to discuss the Agency’s integrated planning framework.  Co-convened by NACWA and the Association of Clean Water Administrators (ACWA), the workshop provided utilities – whether considering the development of an integrated plan or already in the throes of working on one – with an opportunity to discuss implementation issues, barriers and lessons learned.  The facilitated discussion not only provided utilities with an opportunity to direct questions to EPA and state regulators, it also helped to identify potential bottlenecks within EPA and the state regulatory agencies that will need to be addressed to better facilitate the development and approval of integrated plans.  Stakeholder involvement – who to involve and when – was one of the major discussion topics.  Utilities also highlighted the challenges of integrating stormwater and wastewater issues when different municipal authorities have responsibility for these functions, or in the case of one state where different state agencies are responsible for permitting these two Clean Water Act programs, presenting a unique coordination challenge.  EPA and ACWA have expressed their interest in, and commitment to, additional workshops in other regions around the country and NACWA is working to identify potential dates and locations.  NACWA will provide the complete schedule when it becomes available.

EPA Releases Revised Recreational Water Quality Criteria

The U.S. Environmental Protection Agency (EPA) released its 2012 recreational water quality criteria (RWQC) November 26, updating the existing criteria that were last revised in 1986.  While the numeric criteria values have changed little since 1986, other changes, including several since the December 2011 proposal, will make the criteria more difficult to meet.  NACWA has actively tracked and commented on EPA’s efforts to develop and publish these criteria since the Association intervened in litigation in 2006 over the Agency’s failure to comply with the Beaches Environmental Assessment and Coastal Health (BEACH) Act of 2000 (Natural Resources Defense Council v. EPA).  NACWA played an active role in the litigation that led to the new criteria, ensuring that the perspective of the municipal clean water community was aggressively represented.  The criteria were published in the Federal Register on November 29.  Additional information on the revised criteria is available in NACWA’s Advocacy Alert 12-13.