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The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Summer 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 for June 18 Clean Water Law Webinar on Stormwater and Construction Law

NACWA will be hosting the next “Legal Hot Topics” webinar on June 18 from 2:00-3:30 pm ET. Designed to benefit municipal utility attorneys and managers, the webinar is offered at no cost to NACWA members and provides an excellent and convenient opportunity to keep current on the latest clean water issues, developments, trends and case law.

Webinar Agenda:

• Next Generation MS4 Permitting & Compliance Strategies
  • Chris Pomeroy, AquaLaw
• Always Hot Topics in Avoiding and Resolving Construction Disputes
  • Neal Sweeney, Kilpatrick Townsend & Stockton LLP
• Overview of ConsensusDocs Contract Documents
  • Brian Perlberg, ConsensusDocs Executive Director & Counsel

Again, the webinar is complimentary for NACWA members. Registration information and additional details are available on NACWA’s website .

Two webinars in the series have been successfully completed 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.

The last webinar of the series is scheduled for September 17. Mark your calendars now and be on the lookout for additional information.

NACWA Releases Consent Decree Resources

NACWA recently released two key advocacy tools for the municipal clean water community to use when addressing wet weather enforcement issues: a completely revised Consent Decree Handbook titled Wet Weather Consent Decrees: Negotiation Strategies to Maximize Flexibility & Environmental Benefit Wet Weather Consent Decree Handbook, along with an updated and redesigned Consent Decree e-Library.

NACWA’s original Wet Weather Consent Decree Handbook was released in 2003, with supplements published in 2006 and 2009. However, since publication of the 2009 supplement, the consent decree landscape has dramatically shifted with new challenges and considerations coming into play related to integrated planning, affordability, 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 completed a total rewrite of the Handbook with new sections and strategies addressing the current regulatory environment.

The Consent Decree e-Library has always offered the most comprehensive online collection of full municipal wet weather consent decree and enforcement orders, but the new site now provides users with tools to search for decrees, including by EPA region, state, or search term.

These two resources will provide NACWA members with unparalleled information, analysis, and strategies on wet weather enforcement issues including negotiation, renegotiation, implementation, and modification of enforcement orders and decrees. NACWA is pleased to offer both to Association members free of charge as a benefit of NACWA membership. For more details on these powerful tools, see Advocacy Alert 14-09 and The Water Voice Blog “Bound until Clean Water Act Compliance Do Us Part.”

Legal Affairs Committee Will Convene in July at Summer Conference

The next meeting of the NACWA Legal Affairs Committee will occur at 4:00 pm PT on July 14, 2014 as part of NACWA’s 2014 Summer Conference & 44th Annual Meeting in Portland, Oregon.  Additional information on the conference, Executive Utility Leadership … Today & Tomorrow, including registration and hotel details, is available on NACWA’s website.  Make plans to attend the Committee meeting for an engaging discussion of key clean water legal issues.

Save the Date! 2014 National Clean Water Law Seminar to be Held November 19-21, 2014

Mark your calendars for NACWA’s 2014 National Clean Water Law Seminar, which will be held November 20 – 22 in St. Pete Beach, Florida.  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

NACWA Files Brief in Chesapeake Bay TMDL Appeal

NACWA joined with other municipal wastewater partners on April 21 to file a brief  in litigation over the final Chesapeake Bay total maximum daily load (TMDL), providing a strong defense of the watershed approach to achieve water quality improvements. 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. The decision also granted requests by EPA, NACWA and others 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.

NACWA’s recent filing defends that lower court ruling  upholding the TMDL and its inclusion of nonpoint source allocations. The brief argues that EPA’s inclusion of nonpoint sources in the TMDL was both legal and appropriate, and reaffirms NACWA’s commitment to a holistic watershed approach as the most equitable, cost-effective, and environmentally responsible way to achieve water quality improvement. Additionally, NACWA helped to organize a second brief  from a group of six major U.S. cities – New York City, Baltimore, Philadelphia, Chicago, Los Angeles, and San Francisco – supporting NACWA’s position and highlighting the importance of a watershed approach to municipal governments.

NACWA has partnered with the Virginia Association of Metropolitan Wastewater Agencies and the Maryland Association of Metropolitan Wastewater Agencies to participate in the ligation. Oral arguments in the appeal are expected to be held in July, with a decision possible in the fall.

Mississippi River Basin Nutrient Case on Appeal

On April 29, EPA filed its reply brief  in response to the environmental plaintiffs’ 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.

Previously in March 2014, the Fifth Circuit Court granted EPA’s request  for a stay  pending appeal of the district court’s September 2013 decision. 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’s April reply brief argues that the district court lacked jurisdiction to review EPA’s decision to not make a necessity determination and focuses on a procedural question regarding the Agency’s discretion to decide whether to make a necessity determination in the first place. EPA did not appeal the lower court’s ruling that the Agency has wide discretion as to the types of factors it can consider in making a determination.

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 participated actively in the case at the district court level, filing both a joint  and individual brief, and was pleased with the wide discretion the district court gave to EPA in making a potential necessity determination. Because the appeal focuses on the procedural and not the substantive issues, 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.

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

NACWA Challenges EPA’s Non-Hazardous Secondary Materials Rule

NACWA continued its strong advocacy on sewage sludge incinerator (SSI) issues by filing a brief  on April 28 in litigation over EPA’s final Non-Hazardous Secondary Materials Rule (NHSM Rule). This rule classified sewage sludge when combusted as a solid waste. The NHSM Rule provides a critical regulatory foundation for EPA’s SSI Rule resulting in SSIs being regulated as a type of solid waste incineration unit. The NHSM Rule does not have any direct regulatory impact on sludge that is managed via means other than incineration.

NACWA’s filing in Solvay USA Inc., et al. v EPA  argues that existing federal solid waste laws have an explicit “domestic sewage exclusion” (DSE) that prevents EPA from regulating sludge as a solid waste. The brief also points out that EPA’s arguments in NACWA’s previous legal challenge to the SSI Rule acknowledge that domestic sewage is the direct cause of sewage sludge, and EPA has no legal basis to now claim that the DSE does not cover sludge when it is combusted.

NACWA originally filed a legal challenge to the NHSM Rule in 2011 and at the same time challenged the SSI Rule. However, EPA announced in late 2011 that it would revise the NHSM Rule, and accordingly the NHSM court case was subsequently put on hold while the rule was revised. The Agency re-issued the NHSM Rule in early 2013, without addressing any of NACWA’s concerns over the biosolids issue. As a result, the Association renewed its legal challenge to the rule in early May 2013, contesting EPA’s decision to classify biosolids that are incinerated as a solid waste.

In a related development, NACWA also filed an administrative petition  with EPA on May 27 requesting a stay and reconsideration of the Agency’s SSI Rule. The petition argues that a stay and reconsideration are necessary to prevent clean water agencies from making irreversible investments while the SSI rule is on remand and to effectively address the concerns with the rule raised by a federal appeals court in NACWA’s previous legal challenge.

NACWA’s advocacy related to the NHSM Rule and SSI Rule is supported by the Association’s SSI Advocacy Coalition, and NACWA is grateful to members of the Coalition for their continued support.

NACWA’s Brief Opposes Biosolids Land Application Ban

On May 30, NACWA joined with the Northwest Biosolids Management Association and a number of other parties to 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. Oral arguments in the case are scheduled for early July.

In State of Washington v. Wahkiakum County, the lead biosolids regulator – the Washington State Department of Ecology –filed suit against a local ban on land application of Class B biosolids initiated by Wahkiakum County. The state argued that the ban on class B biosolids creates an irreconcilable conflict with a 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 appealed that ruling.

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 has previously engaged in litigation against land application bans and will continue to actively fight against such bans across the country.

EAB Hears Oral Argument in NPDES Nutrient Limits Case

Oral arguments were held on April 30 in City of Homedale Wastewater Treatment Plant, an EPA Environmental Appeals Board (EAB) administrative appeal involving nutrient limits in a publicly owned treatment works (POTW) discharge permit. The position the EAB may take in the case is unclear based on the discussion in oral arguments, opening the possibility of additional litigation on this issue in federal court.

Last December, NACWA joined the Wet Weather Partnership and a coalition of six state municipal wastewater associations in filing a joint amicus brief  in the case, which involves a challenge by an environmental activist group to a National Pollutant Discharge Elimination System (NPDES) permit issued by EPA to an Idaho POTW 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. The joint municipal brief sets forth four key arguments: (1) the Homedale NPDES permit does not warrant review under the EAB’s rules because the POTW’s wasteload allocation (WLA), which is only 0.3% of the TMDL, will have no measurable effect on water quality; (2) the Homedale facility’s permit is a straightforward application of the CWA regulation that requires that NPDES permit limits for POTWs be expressed as monthly/weekly average limits unless doing so is impracticable; (3) the environmental group is effectively attempting to challenge this regulation, which it cannot do in a case before the EAB; and (4) the imposition of daily maximum nutrient limits for POTWs would undermine nutrient control programs nationwide, including the Chesapeake Bay Program, Long Island Sound Program, Tar-Pamlico and Neuse River programs in North Carolina, and dozens of similar nutrient-related programs.

The EAB will likely issue a ruling this summer, which could open the door for an appeal to a federal appellate court. NACWA will monitor developments.

Oral Argument Held in Permit Shield Litigation

On May 14, oral argument was held in an appeal before the U.S. Court of Appeals for the Fourth Circuit of a July 22, 2013, federal district court ruling  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 may 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 enforcement and citizen suits, the Association is participating in this case as part of a broad coalition of diverse groups, including industrial and agricultural point source dischargers, to help preserve the permit shield as a strong defense for NPDES permit holders to enforcement actions. The coalition filed an amicus brief  in early January, and a decision from the court could come at any time. NACWA will keep the membership updated on developments.

Arguments Scheduled for June 25 in Ohio TMDL Litigation

The Ohio Supreme Court will hear oral arguments on June 25 in Fairfield County v. State of Ohio, 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. In February, NACWA and the Association of Ohio Metropolitan Wastewater Agencies (AOMWA) filed a joint amicus brief  in the case. Of particular significance 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.

NACWA Files Brief in Key Stormwater Case

NACWA joined the Association of Ohio Metropolitan Wastewater Agencies (AOMWA) on May 12 to submit an amicus brief  in an important legal case over stormwater fees before the Ohio Supreme Court. The brief, filed in support of NACWA member the Northeast Ohio Regional Sewer District (NEORSD), urges the state supreme court to overturn a lower court ruling that invalidated NEORSD’s stormwater management program. It argues that the increasing complexity and cost of municipal stormwater regulations necessitate a more affordable, equitable, and effective method for utilities to manage and charge for stormwater services. Accordingly, the brief highlights the importance of providing legal recognition and protection for stormwater management programs like the one developed by NEORSD, including the ability for utilities to fund such programs. NACWA previously filed a brief  with a lower court in the litigation as well as with the state supreme court  encouraging review of the case.

Briefs were also filed in the matter by NEORSD  and the State of Ohio  in support of the utility’s stormwater fee program. NACWA has aggressively defended municipal stormwater programs and fee systems in the past and will continue to do so moving forward.

Issues of Interest

NACWA’s Workshop Provides Forum for Dialogue on Consent Decree Challenges & Opportunities

Over 100 clean water professionals gathered in Chicago on April 30 and May 1 for NACWA’s inaugural Wet Weather Consent Decree Workshop. The Workshop provided critical information on the current state of play in the wet weather consent decree arena.

Participants heard presentations from both federal enforcement officials and top municipal clean water experts on the latest trends in clean water enforcement and how utilities can achieve the best results in enforcement negotiations. Through analysis of real world case studies, available tools, effective negotiation strategies, and areas of evolving regulatory flexibility, the Workshop helped 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.

The Workshop also provided a forum for candid dialogue and information sharing on lessons learned, successes and failures. Participants engaged with one another in a variety of settings, including roundtable discussions on key enforcement topics like affordability, integrated planning, and consent decree modification, to exchange ideas and approaches with their clean water colleagues. Presentations from the Workshop are available on NACWA’s website.

EPA, NACWA Exchange Letters on Blending; EPA to Host Experts Forum on Public Health Impacts of Blending

NACWA received a letter  on April 2 from EPA regarding the Agency’s implementation of a recent federal court case on blending. The letter, sent in response to a November 2013 inquiry   from the Association and other municipal groups, confirms that EPA will apply the March 2013 Iowa League of Cities v. EPA decision as “binding precedent” in the Eighth Circuit, but was silent on how the decision will be applied elsewhere in the country. EPA Acting Assistant Administrator for Water Nancy Stoner, however, stated in her remarks at the National Water Policy Forum & Fly-In that the decision will not be uniformly applied outside the Eighth Circuit. Instead, EPA will evaluate blending on a “case-by-case” basis.

NACWA and its municipal partners sent a reply letter  to EPA on May 30.

The April EPA letter also indicated that the Agency plans to hold a public health forum, now set for June 19 and 20, to “ask questions about the public health implications of various bypass and blending scenarios during wet weather events.” Stoner noted during her remarks that EPA hopes to use the forum to guide its decisions on applicability of the Iowa League decision outside the Eighth Circuit.

EPA’s stated objective for the forum is “to enlist public health experts in an effort to ensure that EPA has appropriate health-based information associated with different engineering options available to address wet weather blending at POTWs served by separate sanitary sewers.” EPA does not intend the forum to be a debate regarding the application of the Agency’s bypass regulation at 40 CFR 122.41(m).

As requested in the April 18 Federal Register notice  announcing the forum, NACWA nominated both public health experts and wastewater treatment plant design and operation experts to participate in the forum. Several of NACWA’s nominees were selected by EPA.

NACWA’s May 30 reply letter expressed disappointment with EPA’s April communication, reiterating that the Iowa League decision should be applied nationwide. The letter outlined significant concern over EPA’s actions in creating regulatory uncertainty regarding the status of blending. It also requested EPA provide further explanation for its decision not to apply the Iowa League case nationally. Additionally, the letter sought more detail on EPA’s intended goals and desired outcomes from the planned public health forum.

NACWA’s firm position is that the Eighth Circuit legal decision should be applied nationwide, and is disappointed that EPA has not agreed to do so. NACWA continues to encourage member agencies to use the decision to support the use of blending regardless of geographic location and to support its national applicability. The Association will work to ensure that the municipal clean water community is well represented at EPA’s upcoming forum, and also will evaluate additional advocacy options on this important issue. The membership will be informed of any new developments.

Federal Consent Decree Updates

Chicago Consent Decree Appeal Pending in Seventh Circuit

In April 2014, several environment activist groups appealed the January 6 federal district court 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). The environmental groups originally 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 lower 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 acknowledged a judge’s limited role in the consent decree approval process and articulated the appropriate balance, 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 order held “The Court will either approve the consent decree as reasonable or reject the consent decree as unreasonable. It will not revise the consent decree that the parties have negotiated.”

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. NACWA is pursuing efforts to support MWRD in defending the lower court decision on appeal.

Miami-Dade County Consent Decree Entered by Court

In a related positive development, the United States v. Miami-Dade County consent decree was entered by a federal court in April. A number of local environmental groups intervened in the judicial proceedings for the consent decree negotiated by Association member Miami-Dade County and federal and state regulators, arguing that the proposed decree should be revised to deal more directly with climate change factors. The court 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.

In the April order entering the decree, the federal district court judge addressed the environmental groups’ other claim that the decree was not fair by weighing factors such as the “good faith efforts of the negotiators, the opinions of counsel, and the possible risks involved in litigation if the settlement is not approved.” The court held that there was no evidence of bad faith but rather the decree was negotiated by “experienced and well-intentioned” attorneys, engineers and professionals with relevant expertise.

The court further held that litigation would consume resources that could delay compliance. With regard to whether the settlement is in the public interest and, therefore, reasonable, the court held that after reviewing the decree’s remedial scheme (oversight by the regulators and the court, projects and programs and deadline for compliance), it was indeed reasonable and in the public interest.

NACWA previously filed comments  in support of the decree as negotiated by the parties.

Akron Consent Decree Entered by Court

In January 2014, two years after the decree was lodged with the court, a federal district court judge in Ohio entered  the consent decree for NACWA member Akron, OH, which includes an estimated $1.4 billion plan to address the city’s wet weather issues.

The judge concluded that the decree was “fair, adequate and reasonable, as well as consistent with the public interest.” The court noted that the “biggest impediment to the approval of the proposed Consent Decree was the parties’ inability to clearly and concisely explain how its terms were reached.” The court also stated that the delay in approval was due to a lack of clear “explanations on why the duration of the decree varied so far from EPA guidance” and a lack of detail on “the funding choices that were explored when examining the financial burden created by the Decree.” The court held that those deficiencies had since been remedied and entered the decree.

NACWA was previously prepared to submit a brief in support of Akron and the decree on appeal, although the case did not end up reaching the appellate level. NACWA strongly supported the decree as originally negotiated by the parties and believed it should have been entered by the court when first lodged. The Association is pleased the decree received eventual approval.

NACWA submits comments on DC Water’s LTCP

In mid-April, NACWA submitted comments  in support of efforts by Association member agency DC Water to modify its current Long-Term Control Plan (LTCP) and related consent decree.  DC Water’s plan involves changes to both its LTCP and consent decree by making a significant investment in green infrastructure to reduce combined sewer overflow (CSO) events.  NACWA’s comments endorse DC Water’s proposed plan, noting it represents an innovative approach that balances the utility’s environmental responsibility to reduce water quality impairment in local waters with its equally important obligation to make sound economic investments with its rate-payers’ dollars.  NACWA is always pleased to support Association member initiatives through public comments when helpful and appropriate.