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To:

Members, Affiliates, & Legal Affairs Committee

From:

National Office

Date:

January 19, 2000

Subject:

AMSA Litigation Report

Reference:

Legal Alert 00-1

The National Office is pleased to provide you with the most recent summary report of recent and potential future litigation involving AMSA. These reports are prepared quarterly to update the AMSA membership on litigation activities.

This report also contains two articles (see attached) pertaining to the issue of total maximum daily loads (TMDLs), and their effect on AMSA members and municipalities at large. Both articles were written for the 1999 AMSA/AMWA Law Seminar in Charleston, South Carolina on November 18-19, 1999.

Pronsolino v. Marcus, No. C 99-1828 WHA
This case involves a challenge to the U.S. Environmental Protection Agency's (EPA's) authority to list waters impaired by nonpoint sources and to develop appropriate load reductions from such sources under the Agency's total maximum daily load (TMDL) program. AMSA has intervened in the case as a Defendant in order to protect the interests of POTWs in the TMDL process. From AMSA's perspective, if nonpoint sources, which cause or contribute to a majority of the water quality impairment in the nation's waters, are not addressed by the TMDL program, point sources will bear increased burdens and more stringent permit requirements. On the other hand, if AMSA and EPA prevail, TMDLs will accommodate point source and nonpoint source contributions. Point source permit limits may be more stringent, but point sources will not be responsible for nonpoint source contributions if effective nonpoint source programs are implemented.

The Plaintiffs seek to enjoin and declare unlawful EPA's establishment of the Garcia River TMDL, and to further enjoin EPA from listing any water bodies and establishing any TMDLs pursuant to Section 303(d) that include load reductions from nonpoint sources. The lawsuit was originally filed on April 12, 1999, in the United States District Court for the Northern District of California, San Francisco Division. The Plaintiffs, the Pronsolino family, the American Farm Bureau Federation, and the American Forest & Paper Association (as well as State affiliates), challenge a State timber management plan requiring the property owner to implement specific forestry management practices designed to minimize runoff. These requirements were part of EPA's TMDL for the Garcia River, adjacent to which the lead Plaintiff's timber operation is located. The Plaintiffs contend that EPA lacks the authority to identify and address nonpoint sources of water pollution under Section 303(d) of the Clean Water Act.

The Board approved AMSA's intervention in the lawsuit on July 23, 1999. To date, the case has involved strictly procedural and jurisdictional matters. On October 14, 1999 the Court ruled in favor of AMSA's Motion to Intervene, thereby giving the Association the full rights of a named defendant. Previously, on July 16, 1999, the Court granted similar intervention rights to 16 fishermen's and environmental groups, including the Sierra Club and San Francisco Baykeeper. On December 9, 1999, the court granted permissive intervention to the American Forest & Paper Association and the California Forestry Association, despite AMSA's opposition and the judge's rejection of intervention of right.

The Defendants have designated the U.S. Department of Justice (DOJ) as lead defendant, while the Plaintiffs have appointed the Pronsolinos as lead plaintiff. The parties have thus far been unable to agree on a joint briefing schedule, despite numerous attempts to negotiate an acceptable schedule. As part of the judge's order granting AMSA's intervention, the court required the parties to limit all briefs to 25 pages, with the opportunity to file separate five page memoranda if certain parties wish to make separate points.

The judge has indicated his intent to resolve the case by June 30, 2000. AMSA counsel is currently preparing portions of a brief in support of a Motion for Summary Judgment with DOJ, and hopes to rely on several members' TMDL experiences in support of its position.

Western Carolina Regional Sewer Authority v. S.C. DHEC, Nos. 98-ALJ-07-0267-CC and 98-ALJ-07-0585-CC
The Western Carolina Regional Sewer Authority (WCRSA) filed this suit to challenge the South Carolina Department of Health and Environmental Control's (DHEC) use of unpromulgated “binding norms” for regulatory purposes. The implementation of Clean Water Act Sections 303(d) and 305(b), the TMDL program, and U.S. EPA's National Strategy for the Development of Regional Nutrient Criteria are implicated in these proceedings.

The litigation was prompted by DHEC's use of an unpromulgated trophic state index (“TSI”) as a uniformly-applied “binding norm” to list water bodies as impaired due to phosphorus under Sections 305(b) and 303(d) of the Clean Water Act (CWA). WCRSA and four intervening sewer authorities also challenged DHEC's reliance on the TSI as its justification for listing the same water bodies as impaired due to pH (the new pH policy), for imposing an unpromulgated, yet uniformly-applied, effluent guideline for phosphorus of one milligram per liter (1 mg/l), to be used for establishing “informal” TMDLs, waste load allocations (WLAs) and effluent limits for phosphorus, and for rejecting the effluent limit recommendations of a two-year water quality study provided for in WCRSA's NPDES permits establishing final effluent limits for phosphorus.

The sewer authorities argued that the TSI, the new pH policy and the 1 mg/l effluent guideline should have been established by regulation, that these binding norms were thus illegal and in excess of DHEC's authority, and that all actions based on the binding norms were void ab initio, including DHEC's informal TMDLs and WLAs, and DHEC's rejection of the WCRSA water quality study. The petitioners also argued that DHEC's TSI and the above referenced regulatory actions are scientifically flawed, arbitrary and capricious; and that DHEC's use of these norms and TMDLs and its rejection of the phosphorus study are, thus, an abuse of discretion and have denied the petitioners due process under law.

AMSA filed a brief as amicus curiae on May 28, 1999, supporting WCRSA's position. AMSA argued that DHEC's actions were contrary to law, regulation and national policy directions, and that DHEC's failure to abide by the specific requirements of the TMDL provisions in the statute and its implementing regulations, and DHEC's failure to proceed based on sound law and science, would cost communities billions of dollars without any discernible improvement in water quality. AMSA urged that waters should be placed on the 303(d) list only if they are currently impaired as determined by properly promulgated numeric criteria or narrative criteria translator methodologies.

On September 22, 1999, South Carolina's Chief Administrative Law Judge issued an extensive order granting summary judgment in favor of the petitioners, based on the Clean Water Act, EPA regulations, the state's Administrative Procedures Act, and state and federal constitutional authorities cited by the petitioners. The Judge also found that DHEC had illegally imposed a moratorium on new construction tie-in permits to one of WCRSA's plants, finding that “the moratorium on WCRSA's Lower Reedy Wastewater Treatment Plant was imposed arbitrarily, without basis or foundation, as a direct result of this litigation and as an attempt to force WCRSA to comply with the default phosphorus limits imposed in the 1995 NPDES permit. (Emphasis in the original). The Judge left the issue of whether DHEC's TSI is “scientifically flawed” unresolved, but did note that Constitutional due process required the use of sound science.

Counsel for WCRSA, Rachel Hopp, reports that DHEC and two intervening environmentalists have appealed the ALJ Division's final order to the Board of DHEC, which is authorized to review ALJ Division orders under South Carolina's Administrative Procedures Act. A hearing on the appeal is scheduled for January 20, 2000. In response to the appeals, WCRSA and the intervening sewer authorities have filed petitions in South Carolina Circuit Court (the next level of review), seeking preliminary relief pending the Board's review and challenging the appeals on jurisdictional grounds. A Circuit Court ruling on the petitions is expected this month.

Defenders of Wildlife et al. v. Browner, No. 98-71080
In a significant victory for municipalities, the Ninth Circuit Court of Appeals ruled on September 15, 1999 that municipal stormwater discharges are not required to meet numeric water quality standards. The court rejected the positions taken by both the Petitioners (the Sierra Club and the Defenders of Wildlife) and the Respondents (U.S. Environmental Protection Agency) and adopted instead the arguments put forth by the Intervenors (municipal permittees) and the AMSA-led amici curiae (including the National League of Cities, National Association of Counties, American Public Works Association, National Association of Flood & Stormwater Management Agencies). Although the Petitioners filed a petition for rehearing following the decision, the judge on December 7, 1999 denied the petition. AMSA participated in this lawsuit in order to bolster the argument of local governments that numeric limits were never intended by Congress to be included in municipal stormwater permits.

For the past ten years, EPA has taken the position that municipal stormwater discharges must comply both with Section 402(p) of the Clean Water Act, which requires that cities reduce stormwater to the “maximum extent practicable”, and with Section 301(b), which requires strict compliance with state water quality standards, without regard to feasibility or cost. The court ruled that only Section 402(p) applies and that EPA's interpretation was contrary to the plain language and legislative history of the statute. The court relied on the points in the amicus and intervenors' briefs to make its determination. The court's opinion states that “we agree with the intervenors and amici: . . .the Water Quality Act [of 1987] unambiguously demonstrates that Congress did not require municipal storm sewer discharges to comply strictly with [water quality standards].” While EPA has the discretion to include numeric limits in municipal permits, that discretion is now constrained by the limits of “practicability”, which embraces the concepts of technical and economic feasibility.

The court's decision also enhances the justification for the stormwater language in the AMSA-led Urban Wet Weather Priorities Act. The Act contains a provision which clarifies that the Clean Water Act does not authorize the use of numeric limits in municipal stormwater permits, and that the “maximum extent practicable” standard was designed as the water quality threshold for such systems.

Gearhart v. Reilly

AMSA is a Plaintiff-Intervenor in this case in the United States District Court in Oregon. This case was filed by a group of citizens who sought to require U.S. EPA to propose rules that would identify toxic pollutants in sewage sludge and place limits and conditions on those pollutants. AMSA intervened in the case in September of 1991. The Court has retained jurisdiction pending performance of the terms and conditions of the Consent Decree, including the promulgation of Round II rules. No pleadings have been filed in this case since the January 1999 Litigation Update.

On December 30, 1998, AMSA sent a letter to the U.S. EPA Assistant Administrator for Water reminding the Agency that AMSA is a party to the Gearhart case and that its consent should be sought for any modifications to the requirements of the Decree or the implementation schedule for those requirements. AMSA specifically requested that it be included in any future discussions with the Natural Resources Defense Council (NRDC) or other interested parties regarding potential policy changes that could affect the settlement of the Gearhart matter.

Negotiations Between Virginia Association of Municipal Wastewater Agencies (VAMWA) and EPA Region III
VAMWA intends to file suit against EPA unless a settlement can be reached on the subject of the Agency's decision to list the Virginia portion of the Chesapeake Bay and its tidal tributaries as impaired for dissolved oxygen and aquatic life. In a September 28, 1999 letter of intent to file a Complaint in the U.S. District Court for the Eastern District of Virginia, VAMWA argued that the listing will unjustifiably intrude upon the water quality initiatives of the Chesapeake Bay Program, and will lead to significantly higher costs, slower implementation of nutrient controls, and unnecessary restrictions on growth. Specifically, VAMWA is seeking a delisting of the Chesapeake Bay tributaries, and a process which would allow water quality endpoints to be determined within the context of the Chesapeake Bay Program.

In an effort to reach a settlement on these issues, VAMWA met with EPA Region III on October 20, 1999 to discuss how to integrate the TMDL and Chesapeake Bay Program processes. VAMWA also sent a follow-up letter on November 8, 1999 to the Region III Administrator outlining areas of agreement and remaining concern. In the event that EPA and VAMWA do not reach a satisfactory settlement, the AMSA Board has given its advance approval to file an amicus brief in support of the Virginia Association.

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