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The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Spring 2014 Legal Update. This Update provides summaries of current legal initiatives and discusses developments in NACWA’s litigation matters. Additional information on cases discussed in this Update with links to key rulings and pleadings can be found on the Association’s Litigation Tracking web page. For a condensed overview of all active NACWA litigation, see the Litigation Tracking Spreadsheet.

Any questions regarding this Update or NACWA’s legal advocacy efforts can be directed to Nathan Gardner Andrews at 202/833-3692 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it , or to Amanda Waters at 202/530-2758 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Register Now for First Ever Consent Decree Workshop!

NACWA will host a first-of-its-kind national Consent Decree Workshop on April 30 and May 1, 2014 in Chicago. Designed both for communities currently negotiating a decree or anticipating one, as well as for those currently under decree and considering modification, this Workshop will provide timely and insightful sessions on the current state of play in the wet weather enforcement arena. The format of the Workshop will be designed not only to convey key developments and strategies, but also to foster dialogue and the exchange of information among utilities on lessons learned, successes and failures.

Through analysis of real world case studies, available tools, effective negotiation strategies, and areas of evolving regulatory flexibility, this event will equip clean water agencies with the most up-to-date consent decree information and resources to renegotiate existing decrees or negotiate new decrees that best serve their communities and the environment. Speakers will include some of the nation’s leading clean water legal experts who will provide practical, real-world tips and strategies for both living with/modifying existing decrees and negotiating new ones.

As an added bonus, Workshop attendees will be the first to receive NACWA’s new Consent Decree Handbook. Additional information on the Consent Decree Workshop, including agenda, registration and hotel details, is available on NACWA’s website. Space is limited – register today!

Updated Wet Weather Consent Decree Handbook On Its Way!

NACWA is excited to announce the upcoming release of the Wet Weather Consent Decree Handbook, 2nd Edition. Whether already under a consent decree, currently negotiating one, or anticipating one in the future, this Handbook will be the premier resource for municipal/utility attorneys, managers, and staff to use when dealing with federal or state enforcement actions.

NACWA’s original Wet Weather Consent Decree Handbook was released in 2003, with supplements published in 2006 and 2009. However, since publication of the last supplement, the consent decree landscape has dramatically shifted with new challenges and considerations coming into play related to integrated planning, climate/resiliency, aging infrastructure, energy efficiency/production, water reuse and reclamation, resource recovery, and green infrastructure. These significant changes impact not only communities negotiating new decrees, but also those with existing decrees that may now seek changes or modifications to their decrees to pursue additional flexibility. In order to best address these new opportunities and offer recommendations on how utilities can take advantage of them, NACWA is undertaking a complete rewrite of the Handbook with new sections and strategies addressing the current regulatory environment.

Clean water agencies must keep abreast of recent consent decree developments, case studies, tools, resources and analyses to best negotiate or renegotiate/modify decrees. This new Handbook will be an invaluable instrument to navigate the process. The Handbook is scheduled for release in early May 2014 as an electronic publication. Stay tuned for more details!

Consent Decree E-Library Project

In conjunction with the rewrite of the Consent Decree Handbook, NACWA is also in the process of developing a search engine for the Association’s online Consent Decree E-Library, which will be launched during the Consent Decree Workshop. Consent decrees will be tagged by major category to allow for quick searching. Additionally, to allow for more detailed searches, there will also be a free text search field that returns any decree in the library containing the search term entered.

These upgrades will be make the Consent Decree E-Library a much-improved and more valuable tool for NACWA members, and we look forward to debuting the new site in early May.

NACWA Hosts Hot Topics in Clean Water Law Web Seminars

Building on the success of the Hot Topics in Clean Water Law sessions from our annual Law Seminar, NACWA is pleased to offer a new membership benefit this year to provide members with updates and analysis on key legal topics impacting the clean water community.

During 2014, NACWA will be hosting four quarterly web seminars, which are complimentary for NACWA members. Whether new to the clean water arena, or a seasoned professional, these seminars will benefit utility attorneys, managers and staff.

Two webinars in the series have been successfully completed – one in January and one in March – and provided valuable information on a variety of issues including nutrient allocations in total maximum daily loads (TMDLs), biosolids management, defense of the Clean Water Act (CWA) “permit shield,” the status of CWA jurisdiction, and water quality trading. Handouts from the previous seminars are available on NACWA’s website.

Future webinars are scheduled for June 18 and September 17. Mark your calendars now and be on the lookout for additional information! 

CURRENT CASES

Briefing Underway in Chesapeake Bay TMDL Appeal

In late 2013, the American Farm Bureau appealed the September 13, 2013, federal district court ruling in American Farm Bureau v. EPA, a case brought by agricultural interests to challenge EPA’s final TMDL for the Chesapeake Bay and EPA’s inclusion of nonpoint sources as part of the final TMDL. The lower court’s ruling was a resounding victory that rejected all challenges to the TMDL made by the agricultural plaintiffs in the case, and granted requests by EPA and a group of municipal intervenors, including NACWA, to uphold the final TMDL and its holistic watershed approach that requires pollution reduction from all sources of impairment to achieve nutrient and sediment reductions.

Briefing for the appeal before the U.S. Court of Appeals for the Third Circuit began in late January 2014 with the American Farm Bureau filing its Opening Appellate Brief on January 27. On February 3, 21 state attorneys general and eight counties filed amicus briefs in support of the Farm Bureau’s request for reversal; the amici echo the Farm Bureau’s challenge to EPA's authority on cooperative federalism grounds and allege that the TMDL supplants the states’ traditional control over land management decisions.

NACWA, the Maryland Association of Municipal Wastewater Agencies (MAMWA), and the Virginia Association of Municipal Wastewater Agencies (VAMWA) jointly intervened in the litigation in 2012 to represent the municipal clean water community and were active participants during briefing and oral arguments before the trial court to support inclusion of all sources of water quality impairment in the final TMDL allocations. NACWA is currently working with its partners in the case to draft a brief for the Third Circuit supporting EPA, the TMDL, and the lower court decision. EPA will be filing its brief in early April, and NACWA will be filing its joint brief with MAMWA and VAMWA in late April.

Mississippi River Basin Nutrient Case on Appeal

On February 27, EPA filed its opening brief with the U.S. Court of Appeals for the Fifth Circuit in an appeal of a September 20, 2013, federal district court ruling in the Mississippi River Basin (MRB) nutrients case. The Gulf Restoration Network, et al. v. EPA litigation centers on a challenge by environmental plaintiffs to EPA’s response to a petition requesting a determination that federal numeric nutrient criteria (NNC) are necessary for the MRB and Gulf of Mexico. The district court held that EPA is required under the CWA to make a determination on whether federal NNC are necessary, but gave EPA wide discretion in the types of factors the Agency can consider when making the determination. The court further gave EPA 180 days to make the determination finding.

EPA also moved to stay the lower court ruling in early February, and received a stay from the Fifth Circuit on March 17 – two days before the 180 day deadline. This means EPA will not have to publish a necessity determination regarding federal NNC until the Fifth Circuit has ruled on the Agency’s appeal.

EPA first indicated in November 2013 that it was considering an appeal of the district court ruling, but did not make a decision to pursue a formal appeal until mid-February 2014. The issue EPA is raising on appeal focuses on a procedural question regarding the Agency’s discretion to decide whether to make a necessity determination in the first place. EPA is not appealing the lower court’s ruling that the Agency has wide discretion as to the types of factors it can consider in making a determination.

Because NACWA’s primary interest in this case is the substantive question (what kinds of factors can EPA consider when making a determination) and not the procedural question (does EPA have to make a decision in the first place), NACWA and the other intervenors in the case supporting EPA are not participating directly in the appeal at this point. However, NACWA is closely monitoring developments and stands ready to intervene in the appeal if more substantive issues are raised by EPA or the environmental activist plaintiffs.

On a related note, the issues presented in this litigation and in the Chesapeake Bay TMDL case (see above) raise interesting questions about the role of cooperative federalism in addressing water quality concerns. NACWA has outlined its position on this issue in a recent post, Cooperative Federalism: Courts Get it Right in Nutrient Litigation, on the Association’s blog.

NACWA Files Brief in Appeal of Nutrient Limits in Discharge Permit

On December 23, 2013, NACWA joined the Wet Weather Partnership and a coalition of six state municipal wastewater associations in filing a joint amicus brief in an EPA Environmental Appeals Board (EAB) administrative appeal involving nutrient limits in a public owned treatment works (POTW) discharge permit. The case, City of Homedale Wastewater Treatment Plant, involves a challenge by an environmental activist group to a National Pollutant Discharge Elimination System (NPDES) permit issued by EPA to an Idaho municipal wastewater treatment facility that allows discharges of total phosphorus (TP) at levels that exceed the number of pounds per day allowable under the applicable TMDL. The major issue presented in the case is whether the permit must include true daily maximum limits for nutrients rather than weekly/monthly average limits, a question that has significant national implications regarding how nutrient limits may be expressed in permits.

Existing EPA guidance states that all TMDLs and associated load and waste load allocations be expressed in terms of daily time increments, but reserves flexibility for how the time increments are expressed in individual discharge permits when implementing TMDLs. NACWA supports this flexibility. A key argument presented in the municipal brief is that permitting authorities have discretion to translate TMDL daily targets into more flexible and appropriate average limits in specific permits, especially for nutrients. The Association’s participation in this case provides a critical national perspective on this issue and is especially important because rulings from the EAB have a significant impact on EPA policy nationwide.

Oral arguments in the case are scheduled for April 30.

NACWA Weighs in on Permit Shield Litigation

On January 7, 2014, NACWA joined an amicus curiae brief in an appeal before the U.S. Court of Appeals for the Fourth Circuit of a July 22, 2013, federal district court ruling. The ruling held that a permittee must have actually disclosed a pollutant in its NPDES permit application in order to avail itself of the protection afforded by Section 402(k) of the CWA, commonly referred to as the “permit shield.” The permit shield defense is a critical one for permittees under the CWA and holds that compliance with a permit is compliance with the CWA.

Although the facts of the district court decision in Southern Appalachian Mountain Stewards v. A&G Coal Corp. deal with a mining permit, a ruling from the Fourth Circuit will have implications on all point source dischargers holding NPDES permits, including municipal wastewater and stormwater utilities. Given the importance of the permit shield to NACWA members for protection from citizen suits, the Association is participating in this case to help preserve the permit shield as a strong and robust defense for NPDES permit holders to enforcement actions. NACWA’s participation in this case is part of a broad coalition of diverse groups, including industrial and agricultural point source dischargers, who share a common interest in defending the permit shield defense. Oral argument in the case is scheduled for May 14.

Water Quality Trading Ruling Stands

Environmental activist groups did not appeal the December 13, 2013, federal district court ruling in Food and Water Watch, et al. v. EPA, which dismissed their legal challenge to the water quality trading provisions in EPA’s final TMDL for the Chesapeake Bay. The ruling preserved trading as a vital tool to achieve water quality improvements in the Chesapeake Bay watershed and nationwide. The court dismissed the case because the environmental activist groups that filed the litigation did not have legal standing to bring the challenge and because the provisions of the TMDL discussing trading did not qualify as final agency action. NACWA joined with a number of other municipal organizations to intervene in the litigation in early 2013 in defense of water quality trading programs as an important tool to achieve water quality improvements through the use of effective, verifiable market-based systems.

The ruling dismissing this case was based on procedural issue, and the court did not address the merits of whether water quality trading in legal under the CWA. Accordingly, it is likely that opponents of water quality trading will seek to file new legal challenges to trading programs in the future. NACWA will closely monitor developments and stands ready to take additional legal action when necessary.

NACWA Joins Amicus Brief in Ohio TMDL Litigation

On February 5, 2014, NACWA and the Association of Ohio Metropolitan Wastewater Agencies (AOMWA) filed a joint amicus curiae brief in litigation before the Ohio Supreme Court addressing whether constitutional due process is violated when a permittee is denied the ability to challenge allocations in a TMDL until the allocations are used to develop NPDES permit limits. Of particular significance in this case, Fairfield County v. State of Ohio, is the fact that the permittee had scientific evidence questioning its TMDL allocation and indicating that the permittee’s facility was not a significant contributor to the water quality impairment.

The issue of when a clean water utility may legally challenge specific allocations in a TMDL is one of great importance to NACWA and its members. Existing law holds that a utility may not typically mount a legal challenge to a specific TMDL allocation or limit until that allocation is used to derive a particular effluent limit in an NPDES permit. The pending litigation will address whether this violates a permittee’s constitutional due process protections. The decision reached by the court in this case will not only have significant impacts on NACWA members in Ohio, but will also have ramifications for how other courts elsewhere in the country examine this issue in the future.

The joint NACWA/AOMWA brief argues that permittees should have an opportunity for meaningful review – and potential legal challenge – of TMDL allocations before incorporation into a discharge permit, and that the failure to provide such review is a violation of due process. The brief highlights the importance of ensuring TMDLs are based on sound science, and notes that the lack of meaningful TMDL review can unfairly force clean water utilities to expend significant funds complying with limits that may be scientifically invalid and will not result in meaningful environmental improvements.

NACWA To Push Back on Biosolids Land Application Ban

NACWA will file an amicus brief in an appeal pending in the Washington State Court of Appeals dealing with a ban on the land application of biosolids.

In State of Washington v. Wahkiakum County, the lead biosolids regulator – the Washington State Department of Ecology –filed suit against the Wahkiakum County ban, arguing that a local ban on class B biosolids creates an irreconcilable conflict with the state program that sets standards for land application and issues site specific permits. In early 2013, the trial court issued a very short opinion upholding the class B ban on the grounds that the ban still allowed for class A biosolids land application, which represents a small percentage of biosolids recycling in Washington State. The Department of Ecology has appealed that ruling. Briefing in the case is expected in the Spring of 2014.

This is an important issue for the clean water community nationally in defending biosolids land application. Litigation over such bans elsewhere has resulted in strong, pro-land application legal decisions in both federal and state court. NACWA will continue to actively engage in the fight against land application bans across the country.

NACWA Continues Efforts to Defend Stormwater Programs and Fees

On November 12, 2013, NACWA joined AOMWA in filing an amicus brief requesting the Ohio Supreme Court review a September 26 state appellate court ruling that NACWA member agency the Northeast Ohio Regional Sewer District (NEORSD) had no authority to enact its Regional Stormwater Management Program (SMP) and is, therefore, enjoined from implementing the program. The court further held that NEORSD lacked requisite authority under state statute or the District’s Charter to enact a stormwater fee and is enjoined from implementing, levying and collecting such fee.

On February 19, 2014, the Ohio Supreme Court accepted review of the appeal with regard to two issues which center on whether NEORSD is authorized to administer the stormwater program and collect a fee pursuant to state statute and other state mechanisms.
NACWA is currently working with AOMWA on an additional amicus brief that will underscore the water quality impacts of stormwater runoff and how the rejection of NEORSD’s SMP has broad implications that may hinder the ability of wastewater utilities throughout Ohio, and potentially throughout the country, to address stormwater runoff. The brief will also highlight the importance for clean water agencies in Ohio – and nationwide – to sufficiently fund stormwater and other wet weather management programs that are necessary to meet regulatory mandates and enforcement orders. In addition to regulatory compliance challenges, the brief will address how utilities that have their funding mechanisms inappropriately struck down by courts may be unable to manage runoff that threatens to overwhelm sewers, flood basements, wash out roads, and damage habitats in rivers and streams.

Issues of Interest

Federal Courts Issue Orders in Consent Decree Cases

On January 6, a federal judge issued an order approving the proposed wet weather consent decree between the EPA, the state of Illinois, and NACWA member agency Metropolitan Water Reclamation District of Greater Chicago (MWRD). A number of activists groups filed suit in an effort to alter the requirements of the decree, but the court rejected these attempts and found the plan “reasonable, fair and adequate." In considering whether the consent decree is in the public’s best interest, the court noted the public’s interest in environmental improvement must be balanced with reasonable and affordable ratepayer investment: “The public …includes more than just the people who sail on Lake Michigan or kayak in the Chicago River….The public also includes the taxpayers who pay for the sewer system …and, therefore, have an interest in this project’s being completed at a reasonable cost.”

The decision also clearly acknowledges a judge’s limited role in the consent decree approval process, stating: “A consent decree is the product of parties’ agreement to settle, but the Court’s right to approve or reject that settlement ‘does not authorize the court to require the parties to accept a settlement to which they have not agreed.’” The court’s order will serve as strong legal precedent for clean water agencies elsewhere in the country seeking to have consent decrees approved over objections from citizen groups.

In a related positive development in United States v. Miami-Dade County, a federal court in Florida issued a number of orders in late December dismissing procedural challenges filed by activist groups to a proposed consent decree negotiated by NACWA member Miami-Dade County and federal and state regulators. The court further issued an order on March 6 dismissing requests by the activist groups to force changes to the proposed decree to account for climate change considerations. However, the court also ruled that the parties to the consent decree should submit "additional pleadings" addressing compliance issues before the court can approve and enter the decree. Possible additions to the consent decree identified by the judge to “enhance the Court's confidence in compliance by Miami-Dade County with the Clean Water Act" include appointment of a special master to oversee that committed work and funding "does not get deviated to other non-environmental projects that the County may deem more important.” The judge also suggested an increase in stipulated penalties.

NACWA previously filed comments in support of the decree as negotiated by the parties. NACWA frequently provides comments on proposed decrees or other enforcement orders for Association members when such action would be helpful and appropriate.

NACWA’s Region 8 Integrated Planning Workshop

NACWA and the Colorado Wastewater Utility Council, in conjunction with the Rocky Mountain Water Environment Association and the Colorado Monitoring Framework, are hosting a Region 8 Integrated Planning Workshop (Workshop) in Denver, Colorado on Monday, March 31st. This Workshop will be a facilitated discussion among key EPA headquarters staff, EPA Region 8 staff, state regulators and utility and municipal stakeholders on using the EPA’s Integrated Municipal Stormwater and Wastewater Planning Approach Framework to meet CWA obligations.

There is no registration fee for the Workshop, but we ask that you confirm your plans to attend by registering. If you would like to recommend issues for discussion, or require additional information regarding this Workshop, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Make Your Plans Today for the National Water Policy Forum & Fly-In

NACWA, the Water Environment Federation (WEF), and the Water Environment Research Foundation (WERF) are joining forces to present the National Water Policy Forum & Fly-In, April 7-9, 2014, at the Capital Hilton in Washington, DC. The anchor event of Water Week 2014, the Policy Forum & Fly-In, will bring together water and wastewater professionals from across the country to meet with Members of Congress and federal regulators to share perspectives on federal clean water policy. The two and a half day agenda features Congressional speakers, policy briefings, visits to Capitol Hill, and roundtable dialogues with key policymakers.

Registration information, an agenda and additional information are now available – register today at the special rate of $250!

Technical Workgroup on Flushability of Wipes Moves Forward

A technical workgroup that will address flushability issues related to wipes and other products is moving forward as envisioned by NACWA, WEF, the American Public Works Association (APWA) and INDA (the trade association of the nonwoven fabrics industry).

The idea for the technical workgroup arose during the July 2013 meeting of NACWA, WEF, APWA, and INDA, where the associations decided that flushability issues would best be addressed by a small group of experts from the wastewater and wipes industries. The facilitated workgroup will try to reach consensus on the concepts and definitions related to flushability and the appropriate test methods to screen out non-flushables and verify a product’s safety for collection systems, treatment plants, and septic systems. If the discussions of the workgroup are successful, one set of flushability standards would be developed that both the wastewater and wipes industries agree on. These flushability standards would be the basis for voluntary testing and labeling by manufacturers and retailers.

The workgroup will consist of representatives from NACWA, WEF, APWA, and INDA and will be meeting over the coming months. The workgroup is an important component of the “War to Protect Our Pipes, Pumps, Plants, and Personnel” campaign that NACWA announced in October 2013, to reduce the amount of wipes and other inappropriate products that are flushed or drained into the sewer system.