Federal Court Denies Permit Challenge Involving Controversial Nutrient Limits

A federal appeals court issued a ruling Aug. 3 in litigation over federally-imposed nutrient requirements in a municipal National Pollutant Discharge Elimination System (NPDES) permit, denying a utility challenge and upholding EPA’s nutrient limits.  The First Circuit Court of Appeal’s decision in Upper Blackstone Water Pollution Abatement District (UBWPAD) v. EPA found that EPA is entitled to significant deference when establishing permit discharge limits, even where there may be existing uncertainty regarding the data and modeling for water quality in the receiving waterbody.  The court noted that EPA is entitled to exercise its judgment when setting permit limits in the face of scientific uncertainty, and that courts should not second-guess this judgment as long as EPA follows proper procedure and acts with a reasonable basis.  The court further concluded that EPA’s actions in the current case were reasonable and justified, and thus upheld the challenged permit and nutrient limits.

NACWA filed a brief in the case supporting Member agency UBWPAD’s challenge to the permit, and is disappointed with the court’s decision.  NACWA believes the ruling misreads a number of key elements in the Clean Water Act, and is unnecessarily deferential to EPA on some critical legal issues.  NACWA is also concerned about the potential impact this decision could have elsewhere in Region 1, and in other parts of the country, particularly with regard to nutrient limits in discharge permits.  UBWPAD is planning to request rehearing of the court’s decision with the First Circuit, and NACWA stands ready to assist in this precedent-setting case in any way necessary moving forward.  Additional information on the case and relevant documents are available on the Association’s Litigation Tracking webpage.

NACWA, Water Sector Organization Discuss Integrated Planning, Nutrients with EPA

NACWA and representatives from other water sector organizations including the Association of Metropolitan Water Agencies (AMWA), the National Association of Water Companies (NAWC), the Water Environment Federation (WEF) and the Water Environment Research Foundation (WEF), met with Nancy Stoner, Acting Assistant Administrator for EPA’s Office of Water, and key water office staff this week to discuss a range of issues.  Top on the agenda was the Agency’s integrated planning framework and efforts by communities across the nation to utilize it.  EPA indicated that it now has serious interest from two communities pursuing integrated planning in a permitting context – in addition to the 10 to 15 communities who are actively working with EPA enforcement to include integrated planning in ongoing negotiations.  EPA is seeking communities willing to be recognized as they explore integrated planning, especially small communities and utilities not engaged in EPA enforcement proceedings.

On the subject of nutrients, NACWA noted concerns raised by its members in Region 1 over efforts to translate narrative nutrient criteria into numeric criteria and permit limits.  Region 1 has taken the most aggressive stance on the issue of any EPA region, developing numeric nutrient permit limits for permittees in New Hampshire and Massachusetts, and pressuring the other states in the region to develop and apply translators to derive numeric limits based on existing narrative nutrient criteria.  Based on input from members in the Region, the translators suffer from serious technical deficiencies.  During the meeting this week EPA Headquarters staff was silent on Region 1’s direct permitting actions (see preceding story on Upper Blackstone decision), but noted that for the majority of CWA permits, the issue of translators would be handled by the states, not EPA.  Stoner and her staff indicated that guidance the Agency had planned to develop to help states with translating narratives into numerics has been shelved.  Instead, EPA will work with the states on a case-by-case basis.  NACWA will be following up with the Agency and the states to discuss this issue further.

During the meeting EPA also confirmed plans for an upcoming workshop on utility sustainability planned for September 25 and 26.  Two NACWA public utility members –  Tom Sigmund, Executive Director, Green Bay Metropolitan Sewerage District, WI and Diane Taniguchi-Dennis, Deputy General Manager, Clean Water Services, OR – will participate in the workshop along with representatives from the other water sector organizations.  The meeting is intended to provide input on possible steps EPA and others could take to further promote sustainable water infrastructure and utility operations in the future, building on the substantial body of work that has already been undertaken over the past several years.  EPA is also hosting the second in a series of webcasts on utility sustainability (see related story this issue).

NACWA Files Brief in Biosolids Land Application Case

NACWA submitted a brief this week with a California appeals court supporting a number of Association member agencies from Southern California in a legal challenge to a discriminatory ban on land application of biosolids.  NACWA’s brief in City of Los Angeles, et al. v County of Kern encourages the court to affirm an earlier injunction against land application restrictions initiated by Kern County, Calif., and reiterates the Association’s longstanding opposition to such illegal bans.  The brief highlights the fact that land application is critical for many clean water utilities to meet their environmental and recycling mandates, especially in California, and provides a national perspective on the valuable role land application plays in biosolids management.  The brief also outlines the stringent regulatory process already in place to ensure land application is protective of both the environment and public health, and explains the significant harm clean water utilities around the country would suffer if inappropriate land application bans such as Kern County’s are allowed to stand.

NACWA previously participated in litigation over the Kern County ban in federal court, although that case was ultimately dismissed on an unrelated legal technicality.  The municipal plaintiffs then re-filed in state court and quickly obtained a preliminary injunction against the Kern County ban.  The County is now challenging that injunction before a state appellate court.  NACWA is pleased to continue its support in this critical case, and will keep the membership updated on developments.  Additional information is available on the NACWA Litigation Tracking page.

The Healthy Waters Coalition Continues Outreach on House Farm Bill

The Healthy Waters Coalition continued its work this week in the House of Representatives, encouraging members to support language contained in the Senate Farm Bill that provides stable funding to agricultural producers who engage in nutrient management activities.  On Wednesday, the NACWA-organized Coalition met with the offices of Representatives Betty McCollum (D-MN), Tom Rooney (R-FL), and Marcia Fudge (D-OH), all members of the House Agriculture Committee, to discuss circulating a Congressional sign-on letter that supports the Senate language.  More meetings over the next few weeks are being arranged with other House offices to gain additional signatories.  NACWA will provide members with updates on this letter and the status of the Farm Bill reauthorization as they become available.

Register Now for Law & Order:  SPU Web Seminar

On September 20, 2:00-3:00 pm Eastern, NACWA will present Law & Order:  SPU (Special Pretreatment Unit), a web seminar featuring updates on two popular presentations from the 2012 NACWA Pretreatment & Pollution Prevention Workshop about local pretreatment programs investigating and pursuing legal action against illicit discharges.  Dave Snyder of the Sanitation Districts of Los Angeles County will present It’s All Non-Haz, Baby – Dumping of Shampoo Waste into Lancaster Sewers, a story of how excessive foaming at a treatment plant led to an extensive investigation to track down and convict the culprit.  Chandra Johannesson of the East Bay Municipal Utility District will present You Can’t Make This Stuff Up! A Pretreatment Case for the History Books, an ongoing saga of multiple local, state, and federal agencies raiding and pursuing legal action against an industrial user.   Joseph Johns, Chief of the Environmental Crimes Section, U.S. Attorneys Office for the Central District of California, will also be on hand to provide an introductory presentation on how pretreatment programs should proceed with legal action.

The seminar offers the opportunity to for all members of the pretreatment staff at your utility to access this valuable information and enhance their understanding of the program.  Registration is now available for $250 for NACWA members.

This Week on Engage™ – Members Share Ideas, Learn from Peers

This week on NACWA’s Engage™ social network:

• Affordability, Financing, and Funding group shared perspectives on how utilities are helping low-income residents who have failed laterals or illegal connections.  In Portland Oregon, financial support is offered to low-income and aged ratepayers for new connections to a public sewer system.  Others are considering similar programs. Several useful links were shared.
• Stormwater group is engaged in an active discussion on support for integrated planning, which was in part a continuation of a conversation that began at NACWA’s 2012 Summer Conference & 42nd Annual Meeting.
• NACWA announced a six-part web seminar series on social media and utilities. The Social Market Leadership Web Seminar Series kicks off on Sept. 12 with a one-hour presentation from the experts on how to best integrate blogging into daily interactions, engage ratepayers, and increase a utility’s visibility and credibility. The series runs through February 2013.
• The Summer Conference keynote speaker and social media expert David Nour talk about why social media and online networking is important for utilities was made available to NACWA members. This video was posted in Resources .

These are just a sample of some of the recent activity on Engage™ .  The more people participate, the richer the experience will be for everyone.  If you have any questions or you need help accessing the site, please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it via the link or at 202.530.2758.

EPA Webcast on Utility Sustainability

EPA is hosting a series of webcasts based on its new handbook, Planning for Sustainability: A Handbook for Water and Wastewater Utilities, released in February.  The second webcast of the series, scheduled for Thursday, September 13, 2012 from 1:00-2:30 pm Eastern, will focus on how utilities can engage with various stakeholders in the community to establish sustainability goals that reflect utility and community priorities.  Developed with significant input from utility managers, the handbook describes a series of core elements and steps utilities can take to build sustainability considerations into their existing planning processes.  The webcast is free.  Registration is available now at https://www1.gotomeeting.com/register/797362152 .