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The National Association of Clean Water Agencies (NACWA) is pleased to present the Winter 2016 Legal Update, which summarizes current legal initiatives and developments since December 2015. Additional information on cases can be found on the Association’s Litigation Tracking web page. The Litigation Tracking Spreadsheet provides a condensed overview of all active NACWA litigation. Any questions regarding this Update or the Association’s legal advocacy efforts can be directed to NACWA’s General Counsel & Director of Public Affairs This e-mail address is being protected from spambots. You need JavaScript enabled to view it (202/530-2758).
Legal Advocacy Insights from the General CounselThe NACWA Legal Program is a key component of NACWA’s mission to advance national advocacy goals and safeguard the interests and rights of NACWA Member Agencies. Many people may not think of NACWA as a “legal services” organization, but the reality is that we provide a tremendous amount of legal representation and legal tools for our members and the municipal clean water utility community at large. NACWA tracks litigation and legal developments across the country that have the potential to impact the clean water sector. We look for opportunities to establish positive precedent that will benefit utilities nationwide and regularly intervene or serve as amicus curiae on issues of importance to our members. The Association engages in litigation to ensure appropriate, reasonable, cost-effective and consistent regulations, and to protect clean water utilities from unreasonable enforcement actions and third party litigation. NACWA also provides Member Agencies with legal analyses, tools and resources to help address challenges. The Pennsylvania biosolids case described below provides a recent example of the importance of NACWA's legal advocacy program. NACWA provided a national clean water perspective to the court as it examined whether biosolids application is an agricultural activity protected under the state right to farm statute. In rendering its decision upholding land application, the court specifically cited to the briefs filed by NACWA and other amici in determining that biosolids application was indeed a "normal agricultural operation;" this demonstrates the value of NACWA's involvement. By leveraging partnerships, NACWA can have an even greater influence in the legal arena. For example, NACWA joined the Pennsylvania Municipal Authorities Association to file a joint brief in the aforementioned biosolids case. For the Mississippi River Basin numeric nutrient criteria remand, NACWA is working with a large coalition of industrial and agricultural organizations opposed to federally-mandated nutrient criteria. NACWA has also been collaborating with the National League of Cities, the National Association of Counties, the California Association of Sanitation Agencies, the Association of California Water Agencies, and the International Municipal Lawyers Association to discuss the potential of filing a joint brief in the Ninth Circuit appeal of Hawaii Wildlife Fund v. County of Maui, described below. This year NACWA is poised to expand its legal advocacy program to increase proactive tracking and involvement in litigation affecting our members. I am excited about the opportunities ahead and look forward to continuing to demonstrate the value of this essential arm of NACWA advocacy. If members are aware of existing or potential litigation or opportunities to proactively engage in litigation on issues of national significance to the clean water community, please reach out to me to discuss - This e-mail address is being protected from spambots. You need JavaScript enabled to view it (202/530-2758).
UPCOMING AND PAST EVENTS
Legal Affairs Committee MeetingThe NACWA Legal Affairs Committee will meet on February 22 from 10:45-11:45 am PST during NACWA’s 2016 Winter Conference, Back to Basics . . . Will Compliance Concerns Derail Efforts to Innovate?, which will be held February 21 – 24 at the Westin San Diego. Discussion at the Committee meeting will focus on legal developments related to regulating discharges to groundwater via the conduit theory. Shawn Hagerty, a partner with Best Best & Krieger, will address the Ninth Circuit appeal of a recent decision from a federal district court applying this theory of liability. Additionally, the committee will receive an update on key NACWA litigation activities and important upcoming NACWA legal events, including a brief presentation by Karen Hansen, a Principal with Beveridge & Diamond, on the Mississippi River Basin federal numeric nutrient criteria litigation. Karen will provide a more detailed update on the nutrient litigation on the next Hot Topics in Clean Water Law web seminar. Legal Hot Topics Web SeminarNACWA will hold the next Hot Topics in Clean Water Law web seminar on March 16 from 2:00 – 3:30 pm EDT. The web seminar will feature the following presentations: Impact of Scalia’s Absence on Water Cases before the US Supreme Court. This presentation will examine how the absence of Antonin Scalia could impact the US Supreme Court’s decisions to accept water-related cases for review and decisions on cases already accepted for review. The discussion will focus on United States Army Corps of Engineers v. Hawkes Co., Inc., which deals with whether a jurisdictional determination that property contains “waters of the United States” constitutes “final agency action” that is subject to judicial review pursuant to the Administrative Procedure Act. Numeric Nutrient Criteria & EPA Necessity Determinations: Mississippi River Basin Litigation Update. Karen Hansen, Beveridge & Diamond, P.C., will provide an update on the remanded case in federal district court involving EPA’s response to a petition requesting that the Agency develop federal numeric nutrient criteria for the Mississippi River Basin and northern Gulf of Mexico. Karen will also address how this litigation could affect future attempts to force development of federal numeric criteria. A recording of past seminars, presentation slides, and speaker bios are available on NACWA’s website. Please send suggestions on topics to cover in future web seminars to This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Tentative National Clean Water Law Seminar & Wet Weather Workshop DatesThe 2016 National Clean Water Law Seminar & Wet Weather Workshop are tentatively scheduled for November 1 – November 4 in Kansas City, Missouri. As always, NACWA welcomes suggestions on topics and speakers.
CURRENT CASES
Biosolids
Pennsylvania’s High Court Delivers Major Victory in Biosolids Land Application CaseOn December 21, the Pennsylvania Supreme Court issued a unanimous decision in support of the land application of biosolids. The case - Gilbert v. Synagro - addressed whether biosolids application is an agricultural activity protected under Pennsylvania right-to-farm laws NACWA filed an amicus brief
Blending
EPA Files Brief in Blending CaseOn February 3, EPA filed a brief In its brief, EPA argues that it did not take any final agency action regarding blending that warrants review by the D.C. Circuit, and that it is entitled to invoke “the doctrine of intercircuit nonacquiescence” in its application of the Iowa League of Cities decision as other circuit courts could choose not to follow the Eighth Circuit’s ruling for any number of reasons. NACWA filed a brief
TMDLs
US Supreme Court to Consider Petition for Review in Chesapeake Bay TMDL CaseThe US Supreme Court will consider the American Farm Bureau’s Petition In addition to the Petition, the Court will consider the briefs in opposition to review filed by EPA In July 2015, the Third Circuit upheld
Water TransfersSecond Circuit Hears ArgumentsOn December 1, the U.S. Court of Appeals for the Second Circuit heard oral arguments in a challenge to EPA’s 2008 Water Transfers Rule. NACWA submitted a brief
Water Quality Criteria/Standards
NACWA Files Brief in Mississippi River Nutrients LitigationOn January 14, NACWA filed a brief In 2012, after EPA declined to make a necessity determination on the need for NNC, the activist groups sued EPA. NACWA successfully intervened
OTHER KEY CASES
Maui Groundwater LitigationHawaii Wildlife Fund v. County of Maui is an appeal before US Court of Appeals for the Ninth Circuit of a May 2014 Although the case deals with injection wells permitted under the Safe Drinking Water Act, the court’s decision could have far reaching implications, suggesting that any source that may release pollutants to groundwater that is hydrologically connected to navigable waters could require a National Pollutant Discharge Elimination System (NPDES) permit. Due to the potential impacts on the clean water sector, NACWA’s Board of Directors will be considering NACWA’s amicus curiae participation in this litigation at the February Board meeting. If approved, NACWA’s participation will be part of a broad-based coalition of municipal and clean water stakeholders. Municipalities File Class Action Wipes LitigationIn two separate actions, municipalities in Iowa and Minnesota have requested class action status to pursue litigation against makers of allegedly flushable wipes for damage to sewer systems nationwide. The city of Perry, Iowa, filed a complaint in the Southern District of New York in October 2015, while the city of Wyoming, Minnesota, filed its complaint in the District of Minnesota in April 2015. Both complaints name major wipes manufacturers Proctor & Gamble and Kimberly-Clark, among other defendants, and both seek compensation for damage to their sewer systems and systems across the country. NACWA is conducting a legal analysis of these cases and will continue to track and report developments. California Appeals Court Rejects Tiered Water RatesA California appellate court recently rejected tiered water rates in Capistrano Taxpayers Association, Inc. v. City of San Juan Capistrano The court struck down the city’s rates based on a California constitutional amendment requiring that rates not exceed the cost of providing service to a given property. While the decision may place a higher burden on California utilities to establish that rates are based on cost to serve a given tier, nationwide precedent suggests that other states are unlikely to follow suit. Instead, courts across the country have resoundingly supported tiered rates, so long as they are equitable and non-discriminatory, and a paradigm shift is unlikely in the near future. For NACWA’s full legal analysis on this case, see the February 12 Clean Water Current. Hearing Set in Iowa Nutrients LitigationOn August 8, the U.S. District Court for the Northern District of Iowa is scheduled to hear oral arguments in litigation In March 2015, Des Moines filed suit alleging nuisance, trespass, negligence, taking without just compensation in violation of the United States and Iowa Constitutions, due process and equal protection violations, and violations of the Clean Water Act and Iowa Code Chapter 4558 - all based on nitrates that they claim reached Des Moines from three remote upstream rural drainage districts named as defendants in the suit. Des Moines alleges that the nitrates in the rivers come from artificial subsurface drainage systems, e.g., tile drains, associated with agricultural operations and fertilizer application. The subsurface drainage systems discharge into ditches that are managed by the counties and those ditches discharge into the rivers. Des Moines claims that these discharges are preventing the utility from consistently meeting the 10mg/L maximum contaminant level for nitrates established by the federal Safe Drinking Water Act and it would cost hundreds of millions of dollars to install the necessary treatment technology to ensure consistent compliance. Des Moines contends that the discharges from the tile drains and ditches into the rivers are point source discharges of pollutants in violation of CWA § 301(a) and require NPDES permits. Des Moines argues that the rainwater that infiltrates into the groundwater is no longer agricultural stormwater or irrigation return flow, and, therefore, not exempt under CWA § 502(14). On January 20, the district court judge issued a partial stay on discovery pending resolution by the Iowa Supreme Court of sovereign immunity claims asserted by the drainage districts. NACWA will continue to track this litigation and report any developments. Supreme Court Stays Clean Power Plan RuleOn February 9, the US Supreme Court issued an order A coalition of 27 states filed litigation opposing the final rule released in October 2015. The Supreme Court’s action comes after the D.C. Circuit denied a request to stay the rule. Although the Supreme Court was divided in issuing the stay (5-4), the decision signals that the majority of the court has concerns about EPA’s authority to impose the CPP. NACWA filed comments Regardless of the stay, NACWA strongly encourages its Member Agencies to work with their states now, while they develop their own plans or decide whether to follow the federal plan, to maximize opportunities for the wastewater community. The Association will continue to monitor the litigation and determine what type of advocacy will be appropriate.
Issues of Interest
Stormwater Network Discusses Phase II Rule ProposalNACWA convened a meeting of the National Stormwater Advocacy Network (NSAN) on February 5 to discuss EPA’s Phase II stormwater proposal. The NSAN provides a forum for state and regional stormwater associations and organizations from around the country to broadly engage on national advocacy issues, and collaborates closely with NACWA's Stormwater Management Committee. The stormwater proposal would modify EPA’s regulations for small stormwater systems to allow for more public input on state general stormwater permit requirements. The various options laid out in the proposal will affect each state differently depending on how their current general permit program (if they have one) is structured. NACWA and NSAN are exploring potential common ground with various stakeholders as the process moves forward and are determining if the NSAN will file comments with the Agency. The Phase II rule will be addressed at the upcoming Stormwater Management Committee Meeting on February 22 NACWA Urges EPA to Withdraw Proposed Federal Criteria for Washington StateNACWA filed comments Over the past two years the Washington State Department of Ecology has conducted an extensive public engagement process to craft an approach to toxics control that would have provided more comprehensive protection than afforded by the CWA. However, EPA disagreed with key policy and risk decisions made by the state – decisions that the CWA reserves for the states alone – and followed through on its threat of federal promulgation, proposing its own criteria in a September 2015 Federal Register notice. In response, Washington State has agreed to modify its proposal to meet EPA’s demands. NACWA’s comments focus on the need for EPA to step aside and let the state develop its own proposal “without the threat or aggressive timetable of a federal rulemaking looming overhead.” Oregon has already developed criteria that comply with EPA’s requirements and Region 10 is now turning its attention to Idaho, where the state proposal has elicited federal concerns for not hewing closely enough to EPA’s desired approach. NACWA will continue to closely monitor developments and protect its members’ interest as necessary. This type of inappropriate federal pressure on state water quality decisions is an area where NACWA legal action may be necessary in the future to ensure EPA does not overstep its legal or regulatory bounds.
NACWA Member Legal Tools
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and represents the first time that any state supreme court has addressed the practice under right-to-farm acts (RTFAs). The Supreme Court opinion underscores both the breadth of the Pennsylvania RTFA's protections and the widespread use of recycled biosolids in Pennsylvania and nationally.