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The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Spring/Summer 2013 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 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.  

Legal Affairs Committee Convenes at 2013 National Environmental Policy Forum; Next Meeting in July at Summer Conference

The Legal Affairs Committee met jointly on April 22 with the Legislative and Regulatory Policy Committee as part of NACWA’s 2013 National Environmental Policy Forum.   The Committees discussed a number of legal issues currently impacting clean water utilities, along with recent regulatory and legislative policy developments on Capitol Hill.  Among the topics addressed was a recent decision from the U.S. Court of Appeals for the Eighth Circuit addressing EPA’s current regulatory positions on mixing zones and blending.  Additionally, the Committees received an overview of two recent legal victories from California and Pennsylvania that reaffirmed legal protections for land application of biosolids.  The meeting also featured an update from NACWA staff on the Association’s integrated planning workshops as well as activities in Congress to secure funding for integrated planning pilots.  Handouts from the meeting are available here.

The next meeting of the NACWA Legal Affairs Committee will occur on July 15, 2013 as part of NACWA’s 2013 Summer Conference & 43rd Annual Meeting in Cincinnati, Ohio.  Additional information on the conference, Managing & Financing the Resilient Clean Water Utility, including registration and hotel details, is available on NACWA’s website.  The Committee meeting promises to be a robust and engaging discussion of hot clean water legal issues, so make plans to join us!

Save the Date! 2013 Law Seminar to be Held November 20 – 22, 2013

Mark your calendars now for NACWA’s 2013 Developments in Clean Water Law Seminar, which will be held November 20 – 22 in San Antonio, Texas.  NACWA will begin developing an agenda for the Seminar in July, and registration information will be available in late Summer.  Ideas for topics to be covered at the Seminar are always welcome – please feel free to submit suggestions to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

CURRENT CASES

Oral Arguments Held in SSI Litigation

Oral arguments took place May 3 in NACWA’s litigation challenge to EPA’s sewage sludge incineration (SSI) rule, with the Association aggressively challenging EPA’s legal basis for its new SSI regulations.  As the lead petitioner in the case (NACWA v. EPA), NACWA began the argument with strong challenge to EPA’s statutory authority for the rule, contending the Agency promulgated it under the wrong section of the Clean Air Act (CAA).  NACWA argued that a clear reading of the CAA, along with key language from the Clean Water Act (CWA), demonstrates that SSIs are part of the statutory definition of a ‘publicly owned treatment works’ (POTW), and that Congress intended all emissions from POTWs – including SSIs – to be regulated under a more flexible provision of the CAA than was done by EPA in the final SSI rule.  In a secondary attack on the rule, NACWA also raised challenges in the litigation to EPA’s technical underpinning for the regulation, arguing that EPA used insufficient data to develop the rule’s emissions limits.

The judges were very active in their questioning of both NACWA and EPA during the arguments.  Although at least one, and possibly two, of the judges on the panel seemed sympathetic to EPA’s position regarding statutory authority, the panel appeared more skeptical of the Agency’s technical arguments.  Two of the judges asked questions which suggested they may agree with NACWA’s contention that EPA did not collect sufficient data – particularly on sewage sludge variability – in crafting the SSI rule, and thus the rule suffers from a fundamental technical flaw. The judges also did not seem persuaded by arguments from the Sierra Club, which was also a petitioner in the case and had challenged the final emissions limits in the SSI rule as not being stringent enough.

NACWA is hopeful for a ruling from the court within the next 3-4 months.   While it is difficult to predict the outcome of a case based on oral arguments, it seems possible the court may ultimately remand – and possibly even vacate – the rule based on NACWA’s technical arguments.  If this were to happen, it would be an important win for NACWA and those clean water utilities that rely on SSIs to effectively manage sewage sludge.  NACWA is particularly grateful to members of the Association’s Sewage Sludge Incineration Advocacy Coalition (SSIAC), who have played an instrumental role in supporting the Association’s advocacy efforts on this critical issue.  

Association Renews Challenge to Solid Waste Rule

In a related development, NACWA re-filed its legal challenge to EPA’s non-hazardous secondary materials (NHSM) rule in early May, contesting EPA’s decision to classify biosolids that are incinerated as a solid waste.  The NHSM rule, also known as the ‘definition of solid waste’ rule, provides a critical regulatory underpinning for EPA’s SSI rule.  NACWA originally challenged the NHSM rule in 2011 at the same time it challenged the SSI rule, but the NHSM court case was subsequently put on hold while the rule was revised by EPA.  The Agency re-issued the NHSM rule earlier this year, without addressing any of NACWA’s concerns over the biosolids issue.  As a result, the Association has renewed its legal challenge to the rule and looks forward to continued aggressive advocacy on this issue moving forward.

NACWA Continues Active Role in Mississippi River Nutrients Case

NACWA participated on a reply brief filed May 10 in litigation over nutrient regulation for the Mississippi River Basin (MRB), supporting EPA’s decision to deny an activist petition requesting federal numeric nutrient criteria (NNC) for the entire MRB.  The joint intervenors’ brief in Gulf Restoration Network v. EPA, signed by NACWA and a number of other organizations supporting EPA’s petition denial, responds to arguments from the activist plaintiffs in support of the legal challenge.  

The NACWA/intervenors brief aggressively defends EPA’s denial of the NNC petition, and argues the plaintiffs have failed to demonstrate that federal NNC are necessary for the MRB.  In particular, the brief highlights a concession by the plaintiffs that they have failed to demonstrate any necessity for federal NNC in the MRB.  Additionally, the brief contends that EPA’s petition denial was both procedurally and statutorily valid and that the plaintiffs’ claims to the contrary are invalid.  

The filing is consistent with previous positions taken by NACWA and others in the case, encouraging the court to uphold EPA’s original denial of the federal NNC petition and dismiss the legal challenge.  Briefing in the case is now complete, and NACWA will await a ruling from the court.  

Court Hears Arguments on EPA’s Biogenic GHG Deferral

A federal appellate court considered oral arguments in early April in a challenge to EPA’s deferral of certain biogenic emissions from the Agency’s greenhouse gas (GHG) regulations. The lawsuit, Center for Biological Diversity, et al. v EPA, focuses on EPA’s three-year deferral of biogenic carbon dioxide (CO2) emissions from CAA Title V and Prevention of Significant Deterioration (PSD) permitting requirements.   NACWA filed a legal brief in the case last year supporting the deferral, which applies to emissions from the wastewater treatment process and the combustion of biogas and biosolids – as well as to combustion of other biomass, such as agricultural and forest products.

The panel of judges hearing the case appeared to be split on whether EPA’s deferral decision was valid, with some judges indicating support for the Agency’s action while others expressed skepticism as to the deferral’s validity. The arguments lasted nearly double the original scheduled time, suggesting the judges have significant interest in the issues presented in the litigation. A decision is expected within the next few months.

NACWA’s brief supports EPA’s deferral decision and explains why biogenic emissions from POTWs are different in nature from other biogenic emissions, noting the short carbon cycle associated with human waste and the unavoidable nature of the emissions, which would occur regardless of POTW processing.   The Association’s filing also explains the burden that would be placed on POTWs if the deferral was vacated and utilities were forced to comply with Title V and PSD permitting, monitoring, and reporting requirements.

In a related development, NACWA has also joined a Biogenic CO2 Coalition that is working on drafting a petition for rulemaking and an accompanying technical report to submit to EPA later this year.  The petition will ask EPA to make permanent the Agency’s existing temporary deferral of biogenic CO2 emissions, thus exempting POTWs from related PSD and Title V permitting requirements.    

NACWA Advances Legal Advocacy in Water Quality Trading Litigation

NACWA filed an answer   April 22 in federal litigation over water quality trading programs in the Chesapeake Bay, advancing the Association’s efforts to defend trading in a lawsuit with potential national implications.  NACWA’s filing responds to an amended complaint  lodged by environmental activist groups in February, and acknowledges some NACWA members within the Chesapeake Bay watershed are already engaged in trading programs that could be adversely impacted by the litigation.  NACWA previously requested , and was granted, intervention in the case to help EPA defend trading as an important tool to achieve water quality improvements through the use of effective, verifiable market-based systems.

EPA also filed a Motion to Dismiss  the case on April 22.  EPA requests dismissal on procedural grounds, arguing the plaintiffs have failed to identify a sufficient legal injury or specific EPA action that warrants legal review.   The plaintiffs filed an opposition   to the dismissal request on May 22.  

While NACWA is supportive of EPA efforts to defend the case, the Association also believes a substantive ruling from the court affirming the legal validity of trading programs under the CWA is important to limit any future legal challenges – and provide legal certainty going forward for trading programs across the country.  Accordingly, NACWA has not joined in EPA’s procedurally-based dismissal request but has met with senior Agency officials and lawyers to discuss a coordinated response to the substantive issues raised by lawsuit that provides the greatest level of protection for trading approaches.  NACWA is confident that if the litigation is not dismissed on procedural grounds and ultimately reaches the merits, the Association and EPA will be able to work in a collaborative fashion to defend the legality of water quality trading programs under the CWA.  

The lawsuit was filed by a coalition of environmental activist groups challenging the trading approach endorsed by EPA in the final Chesapeake Bay total maximum daily load (TMDL).  This case has the potential to impact trading programs involving wastewater and stormwater sources, and has implications not just for the Chesapeake Bay region but for all water quality trading efforts nationally. NACWA has been joined in the lawsuit by a broad coalition of municipal and trading interests including the Virginia Association of Municipal Wastewater Agencies (VAMWA), the Maryland Association of Municipal Wastewater Agencies (MAMWA), the North Carolina Water Quality Association, the Virginia Nutrient Credit Exchange Association, and the Wet Weather Partnership.

Supreme Court Declines Review of Nutrients Decision

The U.S. Supreme Court announced May 13 that it would not review a lower court ruling on controversial nutrient limits in a federally issued discharge permit.   The High Court’s decision not to accept Upper Blackstone Water Pollution Abatement District (UBWPAD) v. EPA means an August 2012 ruling   from the U.S. Court of Appeals for the First Circuit will stand, including the decision’s finding of significant deference to EPA in setting nutrient permit limits.  NACWA filed a brief   in support of UBWPAD and asking the Supreme Court to grant review, in part because the case is the first federal decision to address the proper way to translate narrative nutrient criteria into numeric limits in permits.  NACWA also filed briefs in support of the utility during earlier portions of the litigation before the First Circuit.

NACWA is disappointed the Supreme Court declined review, particularly due the national importance of narrative-to-numeric translations of nutrient criteria.  NACWA recently sent EPA a letter on this issue, and will continue its advocacy on nutrient criteria concerns moving forward. 

Negative Ruling on Federal Payment of Stormwater Fees to be Appealed

A notice of appeal was filed in late March by NACWA member DeKalb County, Georgia, requesting federal appellate review of a lower court decision on payment of municipal stormwater fees.  The appeal request in DeKalb County v. United States asks the U.S. Court of Appeals for the Federal Circuit to review a ruling from the Court of Federal Claims, which found that the County’s stormwater charge qualified as a tax and not a valid utility fee.  The claims court’s Jan. 28 decision also ruled that a 2011 CWA amendment clarifying federal facility payment of stormwater fees does not apply to charges billed before the amendment’s enactment.

NACWA strongly disagrees with the lower court's conclusions regarding the tax-versus-fee analysis, as well as its finding on the pre-2011 applicability of the CWA stormwater fee amendment, and is pleased an appeal has been lodged.   The decision's finding on the CWA amendment's applicability to pre-2011 amounts is directly at odds with a ruling   last year from a federal district court in Washington State, which ruled the amendment does apply to pre-2011 amounts.  The claims court decision also contains some stunningly erroneous language on the general nature of municipal stormwater fees, suggesting such fees are more likely to be considered taxes than valid user charges.  NACWA previously filed a brief in the litigation supporting DeKalb County and plans to submit an additional brief at the appellate level as well to push back on the negative lower court ruling.

State Stormwater Fee Cases Heard in Court

Oral arguments were heard recently in two state litigation matters over municipal stormwater fees in which NACWA is involved.  On May 21, the Missouri Supreme Court considered an appeal involving a legal challenge to the municipal stormwater fee program of NACWA public agency member the Metropolitan St. Louis Sewer District (MSD).  NACWA filed a brief   in the case supporting MSD’s program and arguing that stormwater use fees calculated based on impervious surface - such as those used by MSD and being challenged in the litigation - properly qualify as valid service charges and not taxes.  The brief provides a national perspective on this issue, explaining why impervious surface stormwater fees should not be considered taxes, and highlights a number of state courts around the country that have already examined and upheld similar types of stormwater fee programs as valid service charges.

And in late April, an intermediate state appellate court in Ohio heard a similar challenge to a stormwater fee program implemented by NACWA member the Northeast Ohio Regional Sewer District.  NACWA also filed a supporting brief in the Ohio case, making similar arguments to those in the MSD litigation.  NACWA is pleased to support two of its members in these important fee litigation matters, which could influence whether other challenges to local stormwater fee programs are brought elsewhere in the country, and is committed to continued, strong legal defense of municipal stormwater fees.   

No Decision Yet in Chesapeake Bay TMDL Litigation

NACWA continues to wait for a decision in federal litigation over EPA’s final TMDL for the Chesapeake Bay.  Oral arguments were held in early October 2012 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.  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 at any time.

ISSUES OF INTEREST

Federal Appellate Court Issues Major Ruling on Blending; EPA Seeks Rehearing

The U.S. Court of Appeals for the Eighth Circuit issued a significant legal decision   in late March when it struck down EPA efforts to improperly regulate peak wet weather flow management techniques at POTWs.  The decision also struck down certain EPA efforts to illegally regulate mixing zones.   

In making its decision, the court found the CWA’s secondary treatment effluent limitations apply only at the final point of discharge, not within a POTW’s internal treatment processes. This ruling is a major blow to EPA’s inappropriate efforts to limit peak flow management options at POTWs by imposing secondary treatment effluent limitations within the boundaries of the plant.  It also is an important legal victory for utilities using a variety of peak flow management techniques, especially those with parallel peak flow treatment trains, and marks a notable legal victory.

The municipal plaintiffs in the case alleged that EPA was impermissibly limiting the use of mixing zones and blending via de facto new regulatory requirements, but without going through the necessary procedural steps of notice and comment required for binding regulations. The court agreed with this argument and vacated EPA's actions to limit mixing zones and blending on procedural grounds. The court also took its analysis one step further, saying that even if EPA's efforts to limit blending had properly gone through notice and comment, the Agency’s actions would still be illegal substantively under the CWA to the extent they are used to impose secondary regulations on flows within facilities.

EPA filed a request for rehearing  in early May with the Eighth Circuit, asking the full court to review the decision.  The primary thrust of EPA’s argument is procedural in nature, arguing that the contested Agency actions in the case do not qualify as “promulgation” of binding regulatory requirements or as “final” agency action that justify judicial review.  However, in a particularly concerning development, EPA also attacks the court’s substantive ruling that the Agency’s efforts to regulate blending by applying secondary treatment limits within POTWs are illegal under the CWA.   EPA’s rehearing request argues that it may regulate internal waste streams within the treatment plant, and specifically states that “EPA may, consistent with the CWA, regulate bypass and prohibit the diversion of waste streams from secondary and other treatment units even if a POTW is discharging in compliance with end-of-pipe effluent limitations.”  

NACWA strongly disagrees with this position by EPA and believes the Agency does not have legal authority to limit blending or other internal plant wet weather treatment processes if all applicable effluent limits are being met at the final point of discharge.  The Association further believes peak flow treatment techniques play an integral role in helping utilities provide maximum treatment to wet weather flows and protect water quality, and has aggressively advocated against EPA efforts to limit wet weather treatment options.  NACWA will continue to push back against EPA regulatory overreach in the area and will take additional actions as necessary to defend its members’ interests on this critical issue.  

NACWA Applauds Proposed Consent Decrees with Integrated Planning Approach

NACWA submitted comment letters May 24 in support of two proposed municipal wet weather consent decrees which endorse an integrated planning approach.  The two proposed decrees for Seattle, Wash.   and King County, Wash. , both NACWA members, include innovative language allowing for the development, by both communities, of an integrated plan to more holistically address sewer overflow and stormwater issues.

NACWA’s letters express strong support for the integrated planning approach, and commend the utilities, EPA, and the U.S. Department of Justice for developing such innovative proposed agreements.  The letters note NACWA’s lead role in advocating for integrated planning and the importance of providing communities with additional flexibility on wet weather issues.  In particular, NACWA highlights the vital environmental, economic, and social benefits that integrated planning can provide to the citizens of Seattle and King County, while also ensuring tangible water quality benefits.

NACWA believes these decrees can serve as valuable models going forward for other communities and utilities seeking to include similar language in future wet weather enforcement actions. Copies of the letters are available on the Combined/Sanitary Sewer Overflows issue page on NACWA’s website.

NACWA Releases Water Resources Utility of the Future… A Call for Federal Action

NACWA released the Water Resources Utility of the Future… A Call for Federal Action  in April at its National Environmental Policy Forum in Washington.  Drawing upon The Water Resources Utility of the Future…A Blueprint for Action , this concise visual publication defines ten tangible steps that the nation can take to realize a shared vision for the Water Resources Utility of the Future.   It calls upon Congress, EPA, and other key federal agencies to rethink their relationship to the water sector and take the key actions that will put the Utility of the Future within reach for all clean water agencies.   The trifold will serve as a key tool in the Association’s advocacy efforts on the Capitol Hill, and with the Administration and other stakeholders.  Outreach began in April at a meeting with high ranking EPA officials where NACWA explored potential collaborative efforts to advance shared goals under the Utility of the Future initiative. The Water Resources Utility of the Future… A Call for Federal Action is available online as a flipbook and in hard copy upon request to NACWA via Claire Moser at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .