NACWA is pleased to provide the membership with the latest Litigation Report.  This Report contains summaries of the Association’s legal initiatives and discusses developments in NACWA’s litigation matters.

Late Breaking Legal Issues Calls

NACWA completed a successful Late Breaking Legal Issues call on September 13, which addressed the recent victory in the Kern County, Calif. biosolids case and the ongoing legal battle between Sanitation District No. 1 of Northern Kentucky (SD No. 1) and the Greater Cincinnati Water Works (GCWW) over a new wastewater treatment plant.  The Kern County case marks a major victory for the biosolids community, and its potential as a precedent-setting victory for municipalities that land apply across the country was discussed on the call.  Also discussed was the recent legal challenge from GCWW to a new wastewater treatment plant operated by SD No. 1 in what is one of the nation’s first cross-cutting clean water/drinking water legal battles.  GCWW has expressed concern that the new plant will introduce harmful pollutants to its downstream drinking water intake, despite overwhelming scientific evidence showing no threat to the drinking water supply.  A number of speakers on the call addressed these two issues, and participants were then able to engage in a question and answer session.  

The final Late Breaking Legal Issues call of 2007 is on December 12 from 2:00 – 3:00 pm eastern.  Dial-in information for all 2007 calls as well as handout materials can be found on the legal section of NACWA’s Member Pipeline.  

2007 Law Seminar Promises to Deliver Engaging Program

Planning is well underway for the 2007 Developments in Clean Water Law Seminar, scheduled for November 7-9 at the Westin Mission Hills in Palm Springs, CA.  The Seminar will feature many of the nation’s top legal practitioners addressing current issues facing the clean water community.  Among the topics that will be explored are how to make a watershed approach legal and workable, bringing satellite systems to the table to achieve sewer system and watershed goals, the role of financial capability and affordability in selecting infrastructure solutions, and how clean water utilities can best operate and succeed in a changing regulatory environment.  Additionally, the Seminar will kick-off with the ever-popular Clean Water Act Primer, providing an overview of relevant statutory and regulatory provisions, perfect for newcomers to the clean water arena or for veterans looking for a quick review.  Continuing Legal Education (CLE) credits will also be available, and updates on those states providing CLE credit will be posted on the NACWA website.   On-line registration and a copy of the Seminar agenda are now available on the NACWA webpage; the hotel registration deadline is October 16, so register today!

New Security Publication Almost Complete

Final edits are being made to NACWA’s new legal security publication, and it will be available for distribution at the Law Seminar in November. The new publication will provide wastewater utilities, water utilities, and public works directors with a description of key environmental and related legal issues relevant in times of heightened security, and will serve as both a practical manual and guidebook for security related issues.   The project is a joint effort between NACWA, the Association of Metropolitan Water Agencies (AMWA), the American Public Works Association (APWA), and the Water Environment Federation (WEF).

For More Information

New documents are posted regularly in NACWA’s active cases on the Litigation Tracking section of the Member Pipeline.  As always, please feel free to contact NACWA’s 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 spam bots, you need JavaScript enabled to view it with any questions or comments on NACWA’s legal activities.

CASE BRIEFS

NACWA Files Brief in Appeal of Blue Plains NPDES Permit

NACWA filed a brief August 22 with the Environmental Appeals Board (EAB) supporting member agency the District of Columbia Water and Sewer Authority (DC WASA) in its appeal of a National Pollutant Discharge Elimination System (NPDES) permit for the Blue Plains Wastewater Treatment Plant.  The permit, first issued in 2005, does not contain a compliance schedule for implementation of DC WASA's long-term control plan (LTCP).   NACWA and the Wet Weather Partnership (WWP) have supported DC WASA in appealing the permit due to the importance of compliance schedules for those agencies following LTCPs.  The August 22 brief, filed jointly with the WWP, argues that a compliance schedule was required in DC WASA’s permit as a result of the District’s regulations setting water quality standards, and that the Environmental Protection Agency (EPA) committed error by failing to include one.

A new permit for the Blue Plains plant was issued in April of 2007, which replaces the 2005 permit but also lacks a compliance schedule.  In addition, the 2007 permit sets out significant nitrogen reductions that must be met by the plant, but does not provide a compliance schedule for the nitrogen reduction process.  DC WASA filed a petition for review of the new permit on May 7 based on the lack of a compliance schedule for both the LTCP and nitrogen reduction.  NACWA will be filing a second brief in the coming months on behalf of DC WASA specifically addressing the lack of a compliance schedule for the nitrogen reductions.  The EAB has indicated that it will combine the appeals relating to both the 2005 and 2007 permits into one case, and has scheduled oral arguments for mid-November.   NACWA will keep the membership updated on any developments in the case.        

Clean Water/Drinking Water Dispute Expected to Intensify

NACWA member agency Sanitation District No. 1 of Northern Kentucky (SD No. 1) received a discharge permit for its new Eastern Regional Wastewater Treatment Plant (ERWWTP) from the State of Kentucky on August 16.  Based on the issuance of this permit, SD No. 1 anticipates bringing the plant on-line inlate September or early October.  However, additional legal challenges to the new plant have been made by the Greater Cincinnati Water Works (GCWW), which objects to the ERWWTP coming on-line.  The case, which is one of the nation’s first truly cross-cutting clean water/drinking water disputes, began in 2004 with an appeal by GCWW of the original discharge permit issued to SD No. 1 for the new wastewater treatment facility.  GCWW expressed concern that the facility’s outfall would be a source of problematic pollutants such as endocrine disrupters, cryptosporidium, giardia, and viruses at GCWW’s downstream drinking water plant.  However, SD No. 1 has installed state-of-the-art treatment and disinfection technology at the ERWWTP, going above and beyond state and federal regulatory standards to ensure that the effluent poses no danger to downstream drinking water sources.  Additionally, recent studies including a U.S. Geological Survey dye study have shown that there will be ample dilution of the effluent in the Ohio River before reaching the water intake, and that there will be no health risk to the GCWW water supply.    

Due to unexpected difficulties affecting the cost, permitting, and environmental impact of the effluent pipeline and outfall structure, SD No. 1 decided to move the original discharge location, thus making the 2004 discharge permit moot.  The new discharge location also happened to be further away from GCWW’s water intake.  However, GCWW indicated that even with the change in the outfall location it will still challenge the new discharge permit issued August 16, and filed an administrative appeal of the new discharge permit on September 13.  NACWA supported SD No. 1 during the appeal of its first permit, and will continue its support during the litigation involving the new permit.  We will keep the membership updated on developments in this critical case.   

Expert Report in BEACH Act to be Filed in October

NACWA will be filing its Expert Report in Natural Resources Defense Council (NRDC)  v. EPA by October 5.   The case involves a legal challenge regarding EPA’s failure to establish new recreation water quality criteria as required by the Beaches Environmental Assessment and Costal Health Act (BEACH Act).  NACWA’s Expert Report will outline the Association’s scientific position in the case, including what additional studies NACWA believes are necessary for EPA to conduct and how much time the Agency will need to publish appropriate criteria.   NACWA’s position will be based on a review of existing EPA information produced during the discovery process.   Additionally, EPA filed its Expert Report on August 31, and NACWA is in the process of reviewing EPA’s report and preparing a response as part of the Association’s report.  

The BEACH Act called for EPA to assess potential human health risks from exposure to bacteria and other pathogens found in costal recreational waters, and to then publish resulting bacteria and pathogen indicators by October 2005.  However, EPA missed this deadline and NRDC filed suit last summer against the Agency.  The NACWA Board approved participation in the case in September 2006, and NACWA filed a Motion to Intervene in the case in December 2006 so that the Association could bring the clean water community’s voice to anticipated settlement discussions.  NACWA was granted intervention in the case as a plaintiff in March, over the objections of NRDC.   Also in March, the court granted NRDC’s Motion for Summary Judgment on the Pleadings and ruled that EPA violated the BEACH Act by failing to publish the new criteria by October 2005.  The focus of the case now is on how much time EPA will be given by the court to meet its BEACH Act obligations.

Initial settlement discussions have begun between EPA and NRDC, and both NACWA and the other intervenor in the case, the County of Los Angeles, have asked to participate.  The discovery process is expected to stretch into October, with the parties then exchanging Motions for Summary Judgment.  NACWA will keep the membership updated of any developments.

Court Denies Rehearing in CWA Jurisdiction Case, Appeal Possible

The U.S. Court of Appeals for the Ninth Circuit issued an order August 6 denying all petitions for rehearing in City of Healdsburg (Healdsburg) v. Northern California River Watch, a case involving CWA jurisdiction over a wastewater treatment percolation pond.  As a result, the court’s decision of August 10, 2006 will stand.  In that ruling, the court found that Basalt Pond (NACWA member agency the City of Healdsburg’s manmade wastewater percolation pond that is also involved in gravel mining operations) is a "waters of the United States" for purposes of CWA regulation because Basalt Pond contains adjacent wetlands with a "significant nexus" to the Russian River, a navigable "waters of the United States."  457 F.3d 1023 (2006).  Based on this jurisdictional finding, the court held that the City must obtain an NPDES permit to discharge to the percolation pond.  The Healdsburg decision is critically important because it was one of the first appellate court opinions to interpret the U.S. Supreme Court’s June 19, 2006 decision in Rapanos et ux., et al. v. United States and Carabell et al. v. U.S. Army Corps of Engineers et al. (Rapanos).

NACWA, together with the California Association of Sanitation Agencies (CASA) and the Association of California Water Agencies (ACWA), filed a brief on behalf of Healdsburg in 2004 before the Ninth Circuit, and also filed a letter on September 8, 2006 with the appeals court requesting a rehearing.  As a result of the court’s decision to deny rehearing, Healdsburg must now determine if it wishes to appeal the ruling to the U.S. Supreme Court; the City has indicated that it will decide how to proceed in September.  If Healdsburg elects to appeal, NACWA will offer to file an amicus brief on behalf of the city before the High Court.  We will report on any developments in this important case.   

Parties Enter Mediation in Stormwater Fee Case

The City of Cincinnati and the federal government participated in mediation on August 16 in an effort to resolve a dispute over stormwater fees.   The mediation follows unsuccessful attempts between the parties to reach a settlement.  Discussions on settlement began in earnest after a ruling by an Ohio federal court on March 27, 2007 that a U.S. government facility within the City’s service area is not exempt from paying stormwater fees, endorsing the position advocated by NACWA.  The case of City of Cincinnati (City) v. U.S. involves a Department of Health and Human Services (HHS) facility within the City’s service area that has refused to pay over $100,000 in past-due invoices for stormwater services.  The case arose when the HHS facility alleged that the stormwater service charges are an impermissible “tax” on the federal government and thus refused payment.   NACWA, along with the National League of Cities (NLC), the National Association of Flood and Stormwater Management Agencies (NAFSMA), and the American Public Works Association (APWA) filed an amicus curiae brief in the Fall of 2004 arguing that Clean Water Act Section 313 gives local governments the authority to collect fees from the federal government to cover the cost of stormwater services at its facilities.  

The court agreed with this position in its March ruling, and noted that “the City’s stormwater system charge falls squarely within the waiver of sovereign immunity,” and thus the HHS facility is not exempt from paying the charges.  Additionally, the court granted permission to the City to amend its complaint and aggregate its claims in order to achieve the full recovery of past-due bills.  As a result of the August 16 mediation, the U.S. government is to submit a written settlement proposal.  If the proposal is not accepted, the court will set a briefing schedule for the remainder of the case at a status conference on October 3.   We will keep the membership updated on any developments.

Appeal Under Way in Washington State Stormwater Permit Case

NACWA has begun work on an amicus curiae brief in support of a group of municipalities in Washington State, including a number of NACWA members, that are appealing new municipal separate storm sewer system permits (MS4s) issued by the state.  The permits require that MS4 discharges comply with state water quality and toxicant standards in addition to control of pollutants based on the “maximum extent practicable” (MEP) standard.  Washington State’s surface water quality regulations contain numeric criteria for many conventional and toxic pollutants.  The permit’s requirement to comply with state water quality and toxicant standards, therefore, may ultimately require compliance with the state regulation’s numeric criteria.  Many of the municipal permittees have decided to appeal the permits and are specifically challenging the permit provision requiring compliance with the state water quality standards.   The municipalities argue that such a condition is unlawful and inappropriate because it requires them to comply with standards that are not legally required and are not otherwise reasonable, justifiable, and supported by substantial evidence.  Additionally, the municipalities are also challenging the permits on the grounds that they have not been granted sufficient time in which accomplish the required actions.

NACWA has been asked by its Washington State members to file an amicus brief in the matter solely on the issue of whether the requirement to comply with water quality standards is appropriate in stormwater permits.  To this end, NACWA’s brief will argue the Association’s longstanding position that any requirement for municipal stormwater permits to meet water quality standards is inappropriate and illegal, especially if there are numeric limits for pollutants.  NACWA’s position in this case will be similar to positions the Association has taken in other stormwater litigation.  NACWA’s Board approved participation in this case at its July 2007 meeting.  NACWA held a conference call on August 24 with the municipal coalition to discuss the case, will file a brief in the case in the coming months.  NACWA has also reached out to NAFSMA and NLC to participate in the appeal.    

Work Continues on Suitability Analysis in Aftermath of TMDL Case

Edits and revisions continue on a suitability analysis to determine the appropriateness of creating true “daily” total maximum daily loads (TMDLs) for certain pollutants, including nutrients, mercury, and bacteria.  Creation of this analysis follows the decision of the U.S. Supreme Court in January 2007 not to review Friends of the Earth v. EPA, an April 2006 ruling by the U.S. Court of Appeals for the District of Columbia that all total maximum daily loads (TMDLs) for the Anacostia River must be expressed in daily terms, not in monthly or seasonal averages.  As a result of the Supreme Court’s action, the D.C. Circuit decision will stand, and EPA has been directed to develop new TMDLs for the Anacostia River in accordance with the appeals court decision by June 2008.  A draft of the suitability study was discussed with the Water Quality and Legal Affairs committees at the July meeting, and a review group of NACWA staff and committee members is currently providing comments on the draft.  Once finalized in the coming months, NACWA will use the suitability analysis to further inform its discussion with EPA over the development of future TMDLs.  

No Ruling Yet in Effluent Limitation Guideline Case

The U.S. Court of Appeals for the Ninth Circuit has not yet released a decision in Our Children’s Earth Foundation (OCEF) v. Environmental Protection Agency, a case involving a challenge by OCEF to EPA’s Effluent Limitation Guidelines (ELG) program.  Oral arguments were held on February 13, 2007 and a ruling is expected at any time.  NACWA entered the case as an intervenor and urged the appeals court in November 2005 to affirm the finding of the trial court that EPA is implementing the ELG program properly and consistent with Congress’ intent.  At oral arguments, the Association reiterated this position and emphasized to the court the 30 years of case law and CWA legislative history, which support EPA’s recent ELG program actions.  The three judge panel examined the language of the Clean Water Act (CWA) and whether EPA's duty to "review" ELGs every year includes a non-discretionary duty to evaluate the details of each ELG.  One judge appeared convinced that nothing in the CWA mandates this type of review; and two judges seemed to believe EPA has significant discretion in how it chooses to carry out its mandatory “review.”  The panel focused on the CWA’s language that EPA shall "review, and revise [ELGs] if necessary."  We will inform the membership of the court’s decision when it is available.  

Settlement Negotiations Ongoing in District of Columbia MS4 Permit Appeal

Negotiations between the Friends of the Earth (FOE), Defenders of Wildlife (Defenders), EPA, and the District of Columbia (District) involving the March 2006 Final Modification to the District’s MS4 permit continue, with the parties attempting to reach a settlement.   FOE and Defenders filed petitions for review with EPA’s Environmental Appeals Board (EAB) over the permit, but all parties have continually agreed to extend EPA’s time to respond to allow for settlement discussions.  The parties attended a status conference on June 8 where they discussed their progress in negotiations and the possibility that they might enter into formal mediation.  Since that time, the parties have met a number times and report progress on reaching a settlement agreement.  They are hopeful that a settlement can be reached by October 29, which is the most recent deadline set by the EAB to conclude negotiations.   

In the petitions, FOE and Defenders cite the permit’s failure to “contain effluent limits adequate to assure compliance with water quality standards.”  They allege that “pollutant specific, numeric limits” are “presumptively required” by the CWA.  Contrary to the CWA’s legislative history, NACWA’s long-standing positions, and prior court decisions, the environmental groups assert that CWA § 402(p)’s specific standard for MS4s – that cities remove stormwater pollutants to the maximum extent practicable (MEP) using best management practices – allows BMPs only where numeric limits are infeasible and where it is shown that other limitations will assure compliance with water quality standards.  NACWA, NLC, NAFSMA, the Wet Weather Partnership (WWP), the West Virginia Municipal League (WVML), and the Virginia Municipal League (VML) have all been involved in this case to protect the MEP standard for MS4 discharges.   

NACWA Awaits Ruling in Clean Water Act Attorneys’ Fee Award Case

No decision has been released by the U.S. Court of Appeals for the Sixth Circuit in the case of U.S. v. Board of County Commissioners of Hamilton County, Ohio.  Oral arguments in the case were held on September 15, 2006.  The litigation involves NACWA member agency the Metropolitan Sewer District of Greater Cincinnati’s (MSDGC’s) appeal of a ruling by the U.S. District Court for the Southern District of Ohio that the Sierra Club was a “catalyst” to MSDGC entering a consent decree, and the award to Sierra Club of $1 million in attorneys’ fees under the CWA’s citizen suit provision (§505(d)).  NACWA filed an amicus curiae brief in support of MSDGC before the Sixth Circuit on February 15, 2006, arguing that the catalyst theory has been soundly rejected by the U.S. Supreme Court and that the Sierra Club could not be found as a “prevailing or substantially prevailing party” under the CWA because Sierra Club not only opposed entry of the decrees but also was not a party to the decrees.  The parties to the case think the delay in releasing an opinion may be due to a split decision and a dissent.  We will inform the membership as soon as a decision is announced.

Ohio Phosphorus TMDL Case Expected to Begin Soon

The City of Salem, OH (City) is expected to soon initiate a challenge to EPA’s September 2005 approval of phosphorus TMDLs for several Ohio rivers.  The City alleges that approval was inappropriate because the Ohio Environmental Protection Agency (Ohio EPA), using an internal technical guidance document, developed the TMDLs based on “target values” rather than real world conditions.  These TMDLs, in turn, are the source of new, more stringent phosphorus effluent limitations in wastewater NPDES permits.  NACWA’s Board approved the Association working with the Association of Ohio Municipal Wastewater Agencies (AOMWA) in July 2006 on an amicus curiae brief supporting the City, and NACWA will develop the brief with AOMWA once the City has initiated the litigation.