Member Pipeline - Legal - Alert (Leg 05-01)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | January 24, 2005 |
| Subject: | Litigation Report |
| Reference: | Legal Alert 05-01 |
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Committee Attorney-Client Communication
AMSA is pleased to provide you with the latest Litigation Report. This Report contains updates on AMSA’s legal initiatives, and summarizes recent developments in AMSA’s litigations.
2004 Law Seminar Well Received
AMSA’s 2004 Developments in Clean Water Law: A Seminar for
Public Agency Attorneys & Managers (Seminar) was held November 10-12 at the
Loews Coronado Bay Resort, San Diego, Calif. The agenda focused on recent legal,
policy, and regulatory developments on key water and wastewater topics.
Approximately 25 percent of the attendees provided feedback on the Seminar,
and noted the high quality speakers and materials, the in-depth program content,
and the valuable peer-to-peer discussions. The breakout sessions on combined
sewer overflow (CSO) and sanitary sewer overflow (SSO) developments also were
well attended. We received many topic suggestions for the 2005 Seminar,
which will be held November 9-11 at the Inn and Spa at Loretto, Santa Fe, NM.
Planning for the 2005 Seminar will begin in earnest later this year.
AMSA Adds to Litigation Portfolio
AMSA’s legal activities have been consistently busy since the
September 2004 Litigation Report. With the AMSA Board’s support, AMSA has
begun to pursue involvement in The Matter of D.C. Stormwater Permit and in
Milwaukee Metropolitan Sewerage District (MMSD) v. Friends of Milwaukee’s Rivers.
In addition, AMSA received decisions in the whole effluent toxicity (WET) and
the “daily” load cases in recent months. Summaries of AMSA’s new cases, as well
as AMSA’s other active cases and recent decisions, are included in this Report.
Late Breaking Legal Issues Calls
AMSA concluded its 2004 series of Late Breaking Legal Issues
Calls on December 8 with a guest speaker on recent developments under the
Information Quality Act, and began the 2005 series with a January 19 call on
consent decree trends. Future 2005 conference calls will be held from 2 to 3
p.m. eastern time on March 16; June 15; September 14; and December 14. Dial-in
information and additional details are posted in the Member Pipeline
legal section.
For More Information
New documents are posted regularly in AMSA's active cases in the
Litigation Tracking section of the Member Pipeline. As always, please feel free
to contact AMSA General Counsel Alexandra Dunn at 202/533-1803 or
adunn@amsa-cleanwater.org
with any questions on AMSA’s legal activities.
CASE BRIEFS
D.C. Appeals Court to Hear Blending Case in May
On May 19, the U.S. Court of Appeals for the District of Columbia Circuit
will hear oral argument in the blending case appeal, Pennsylvania Municipal
Authorities Association v. Environmental Protection Agency (EPA). The
November 2004 opening briefs for the municipal appellants and AMSA assert that
EPA Region 3, 4, and 6’s anti-blending policies are beyond the Regions’
delegated authorities and are therefore illegal actions. We argue that the lower
court erroneously dismissed the case in November 2003 for lack of jurisdiction,
as district courts have jurisdiction over all cases involving illegal agency
actions. EPA will file its response to the opening briefs on February 4. We will
keep the membership informed of developments in this case as it moves forward.
Notwithstanding the litigation, AMSA continues to press for a final blending
policy from EPA.
Oral Argument Delayed in Interbasin Transfer Case
The U.S. Court of Appeals for the Second Circuit has not yet
scheduled a Spring 2005 oral argument in Catskill Mountains Chapter of Trout
Unlimited, Inc. v. City of New York. In this case, AMSA filed a June 2004
amicus curiae brief, supporting member agency the New York City Department
of Environmental Protection (NYCDEP), to assert that the water quality impacts
from local government transfers of untreated, natural water should not be
addressed via National Pollutant Discharge Elimination System (NPDES) permits.
Our brief asserts that other Clean Water Act (CWA) and state programs are better
tailored to mitigate these impacts. The National League of Cities (NLC), the New
York State Conference of Mayors and Municipal Officials, and the Association of
Metropolitan Water Agencies (AMWA) joined AMSA’s brief.
AMSA to Support Supreme Court Review of CWA Citizen Suit
Case
On February 2, AMSA will file an amicus curiae brief
urging the U.S. Supreme Court to review a case questioning the scope of the
CWA’s citizen suit provisions in Fall 2005. In MMSD v. Friends of Milwaukee’s
Rivers, AMSA member agency MMSD is asking the High Court to accept for
review a September 2004 decision of the U.S. Court of Appeals for the Seventh
Circuit which allowed a citizen suit to proceed in federal court although MMSD
had lodged in state court a stipulation with Wisconsin to remedy the SSOs at
issue. The Seventh Circuit’s decision allows citizen groups to second guess – in
federal court – remedial measures carefully negotiated by cities with their
states, and has the potential to discourage settlement discussions with state
regulatory agencies and to upset the federal/state/citizen balance reflected in
the CWA. To date, the CSO Partnership (CSOP) has filed an amicus brief in
the case. AMSA will provide updates on this case as it proceeds.
Briefing Schedule Anticipated in Urban Air Toxics Case
On January 28, EPA and the Sierra Club are to present a schedule
to the U.S. District Court for the District of Columbia for briefing outstanding
issues in Sierra Club v. Leavitt. This case concerns overdue federal air
toxics regulations, including those for urban sewage sludge incinerators (SSIs)
under Clean Air Act § 112(k). AMSA intervened in the case in 2001 to ensure that
any schedule for SSI rules established in the case will allow EPA sufficient
time to develop sound regulations. We will provide more information on this case
as it progresses.
WESTCAS, WET Coalition Seek Rehearing of WET Decision
In late January, the Western Coalition of Arid States (WESTCAS)
and the WET Coalition (comprised of various industry associations and private
companies) will seek a rehearing of the December 10, 2004 U.S. Court of Appeals
for the District of Columbia Circuit decision to uphold EPA’s chronic whole
effluent toxicity (WET) test methods. AMSA and other members of the municipal
coalition will not participate in the rehearing in Edison Electric Institute
v. EPA. Rather, AMSA is directing efforts towards reviewing and commenting
on EPA’s December 29, 2004 draft WET implementation guidance (see Regulatory
Alert 05-02). The court’s decision upholding the chronic WET test methods
was detailed for the membership in Legal Alert 04-11.
D.C. Stormwater Permit Case May Settle, Preempting AMSA
Involvement
On January 10, EPA’s Environmental Appeals Board (EAB) gave EPA
Region 3 until early March to continue settlement discussions with the activist
groups challenging the District of Columbia’s (District’s) municipal separate
storm sewer system (MS4) permit. In The Matter of D.C. MS4 Permit (2004),
activist groups assert that the August 2004 permit issued by Region 3 fails to
require the District’s MS4 discharges to meet water quality standards (WQS) and
to include numeric limitations for key stormwater pollutants.
In November 2004, AMSA applied to enter the case to support the District, accompanied by the National League of Cities (NLC), the National Association of Flood and Stormwater Management Agencies (NAFSMA), the CSO Partnership (CSOP), the West Virginia Municipal League (WVML), and the Virginia Municipal League (VML). AMSA’s long-standing position, which has prevailed in other cases, is that the CWA does not require MS4 discharges to meet WQS. Rather, cities must remove stormwater pollutants to the “maximum extent practicable” (MEP) using best management practices (BMPs). In December 2004, AMSA and the national groups rebutted the activists’ objection to our participation in the case.
EPA Region 3 has gone on record as not objecting to our participation, but suggests in its recent filings that the case may settle, making a ruling on our application moot. AMSA has requested an opportunity to comment on any contemplated settlement – which likely will involve changes to the District’s August 2004 permit. We will keep the membership informed of developments in this case as they occur.
California High Court Hears Case on Economics & NPDES
Permitting
On January 4, the California Supreme Court heard oral argument in
Cities of Burbank & Los Angeles (Cities) v. State Water Resources Control
Board. The case concerns whether California water permitting authorities
must consider compliance costs when setting pollutant limitations in
wastewater discharge permits. AMSA filed a May 2004 amicus brief in this
important case to support member agency the City of Los Angeles Department of
Public Works.
At oral argument, attorneys for the Cities highlighted how economics come into play in various CWA provisions, showed how considering economics does not preclude WQS compliance, and emphasized the importance of site-specific assessment to set realistic pollutant reduction goals. Attorneys for environmental groups in the case argued that economics can not be considered in CWA permitting. A decision in the case is expected in April. It is unclear how deeply the Court may delve into the two issues highlighted in AMSA’s amicus curiae brief: how compliance schedules can be used to allow stringent limits to be achieved over time; and that permitting authorities must develop through rulemaking the translator mechanisms used to convert narrative WQS into numeric permit limits.
Activist Groups Appeal “Daily Load” Victory
On December 30, 2004, the Friends of the Earth (FOE) appealed to
the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit the
November 29, 2004 decision of the D.C. District Court holding that the CWA does
not require total maximum daily loads (TMDLs) to be expressed only as true
“daily” loads. A summary of the victory for AMSA and all public agencies in
FOE v. EPA was distributed via Legal Alert 04-10. AMSA and CSO
Partnership (CSOP) participated in the case as amicus curiae case in
support of the District of Columbia Water and Sewer Authority (DC WASA). AMSA’s
Executive Committee has endorsed the Association filing papers with the CSOP in
the appeals court by the February 3 deadline to continue AMSA’s involvement as
amicus in this important case.
EPA, Activists Settle Missouri WQS Case; AMSA Consents
On December 27, 2004 the Missouri federal court entered a consent
decree and settlement agreement between EPA and the Missouri Coalition for the
Environment (MCE), thereby resolving the litigation over EPA’s failure to
correct several allegedly deficient Missouri water quality standards and
criteria. As intervenors in MCE v. Leavitt, AMSA and the Urban Areas
Coalition (a group of Missouri AMSA member agencies) agreed with the consent
decree and settlement agreement, and will receive notice of any changes or
delays as the settlements are implemented. The presence of AMSA members in the
case helped bring it to resolution and positions them to play a role in future
regulatory development.
Under the settlement and consent decree, by April 2006 Missouri must submit new or revised WQS to EPA for approval for: dissolved oxygen, dissolved metals criteria for drinking water supply, water quality criteria for aquatic life protection, human health-fish consumption, and drinking water supply, stream classifications for cold-water sport fisheries, and designated beneficial uses. If the State fails to meet this deadline, EPA must propose a rule to address the standards. Final WQS are to be in place by December 2006. Missouri also will submit to EPA by April 2006 new or revised WQS for: protection of outstanding natural resource waters, whole body contact, primary contact recreation (beaches), site-specific water quality criteria, mixing zones in low flow streams, and for the fecal coliform/high flow exemption. The State also will submit an antidegradation rule by April 2007. If Missouri fails to take these actions, EPA must make a finding whether the new or revised WQS are necessary under CWA § 303(c)(4)(B).
Prominent Effluent Guidelines Case Moves Forward
On December 10, 2004, Our Children’s Earth Foundation (OCE)
amended its complaint against EPA before the U.S. District Court for the
Northern District of California (San Francisco) to reiterate that it seeks to
have EPA ordered to: 1) review all effluent guidelines annually under CWA
§§ 304(b) and (m); 2) review those effluent limitations based on best available
technology economically achievable (BAT) and best conventional pollutant control
technology (BCT) every five years under CWA § 301(d) and (b)(2); 3) issue
biennial effluent guidelines plans under § 304(m) before the time period
covered in them begins; and 4) adopt a 2004/2005 effluent guidelines plan that
complies with CWA § 304(m). OCE also seeks to have the court declare
EPA’s past practices for reviewing effluent guidelines and limitations, and for
adopting effluent guideline plans, “unlawful.” AMSA was granted intervenor
status in this case in October 2004 after we overcame OCE’s strenuous objections
to our participation through oral argument and extensive written analysis
demonstrating the Association’s long history of impacting effluent guidelines
policy. EPA and AMSA will respond to OCE’s recent allegations in
February. A hearing is scheduled before the court on March 23. We will provide
additional information on the case in the coming weeks.
AMSA Gains Amicus Status in Virginia Nutrient Permit
Appeal
On November 30, 2004, AMSA and the Virginia Association of
Municipal Wastewater Agencies (VAMWA) successfully gained amicus status
in Chesapeake Bay Foundation (CBF) v. Town of Onancock. CBF is appealing
Onancock’s NPDES permit because it does not contain nutrient limits. While
Virginia is in the process of revising nutrient water quality standards and
developing total maximum daily loads (TMDLs) for the Bay, the Town’s permit
requires it to monitor for nutrients, accelerate nutrient removal planning, and
maximize current nutrient removal capability. AMSA and VAMWA will file a brief
this spring arguing that it is important to allow the State to complete its
scientific studies of the Bay so that subsequent facility upgrades will result
in measurable water quality improvements.
Briefing Complete in Case Regarding NPDES Permits for
Groundwater Discharges
In October 2004, briefing was completed before the U.S. Court of
Appeals for the Ninth Circuit in City of Healdsburg (City) v. Northern
California River Watch. An oral argument date should be set soon. In the
case, the lower court found that the hydrological connection between the City’s
percolation pond and a nearby river through groundwater made the pond a “water
of the United States” as a “tributary” to a navigable water. The lower court
held that City requires an NPDES permit to discharge to the pond. This holding
is being challenged in the appeal.
AMSA, the California Association of Sanitation Agencies (CASA), and the Association of California Water Agencies (ACWA) filed an amicus brief in the case in June 2004 to highlight that the lower court’s decision would expand the NPDES permit program to groundwaters, contrary to Congress’ intent. We will keep the membership informed of developments in this case in the coming months.
Federal Case Upholds that Odors are Nuisance Claims, Not
CWA Claims
On September 17, 2004 the U.S. Court of Appeals for the District
of Columbia Circuit dismissed, at their request, the American Canoe
Association’s (ACA’s) appeal of the March 2004 lower federal court decision
that the Clean Water Act’s (CWA’s) citizen suit provisions can not be
used to enforce complaints about odor, noise, or other non-water issues. AMSA,
the U.S. Chamber of Commerce, and the American Public Works Association (APWA)
were granted amicus curiae status in ACA v. District of Columbia Water
and Sewer Authority (DC WASA) to support DC WASA’s assertion that non-CWA
aesthetic "obligations" should not be "implied" into NPDES permit terms. Now,
the lower federal court’s decision stands as solid law to support public agency
arguments that odor, noise, aesthetics, zoning, or other concerns – if they
cannot be resolved through discussion and consensus –should be brought as state
law nuisance claims and not as CWA citizen suits.
Court Accepts AMSA, Coalition Participation in
Stormwater Fee Dispute
AMSA is participating with other municipal groups as amicus
curiae to support the City of Cincinnati (City) in a stormwater fee dispute
with the U.S. Government. In Cincinnati v. U.S., a Department of Health
and Human Services facility within the City’s service area has refused to pay
over $100,000 in past-due invoices for stormwater services, alleging that the
service charges are an impermissible tax on the federal government. AMSA was
granted amicus status in the case last fall with the National League of
Cities (NLC), the National Association of Flood and Stormwater Management
Agencies (NAFSMA), and the American Public Works Association (APWA). A schedule
for activities in the case will be established in the coming months.