Member Pipeline - Legal - Alert (Leg 05-06)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | December 2, 2005 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 05-6 |
Printer friendly versionNACWA is pleased to provide the membership with the latest Litigation Report. This Report contains summaries of the Association’s legal initiatives and discusses recent developments in NACWA’s litigation matters.
2005 Law Seminar Fosters High-Level Talks on
Legal, Policy Challenges
The 2005 Developments in Clean Water Law: A Seminar for Public
Agency Attorneys & Managers (Seminar) was held November 9-11 at the
Inn at Loretto, Santa Fe, NM. The Seminar provided attendees with an
excellent opportunity to meet and discuss current legal, regulatory, and policy
issues. Speakers covered topics including use attainability analyses (UAAs),
total maximum daily loads (TMDLs) and biosolids management. In-depth discussions
were held on whole effluent toxicity (WET), the Safe Drinking Water Act (SDWA),
and enforcement trends. A preliminary review of Seminar evaluations reveals that
all topics addressed were relevant and practical to the attendees. In
particular, a featured speech from John Horning, Executive Director of Santa
Fe-based Forest Guardians, challenged attendees to view their responsibilities
toward our nation’s waters as an ethical and moral obligation. An afternoon
Communications Workshop gave attendees an opportunity to test key messages and
strategies for reaching out to the public. All Seminar presentations are
available on NACWA’s Conference & Meetings webpage at
http://www.nacwa.org/meetings/.
Information will be available soon on the location and dates of the 2006
Seminar.
Late Breaking Legal Issues Calls
NACWA is poised to complete its 2005 series of Late Breaking Legal
Issues calls on December 13 from 2 -3 p.m. eastern time. This call will
feature a discussion of criminal environmental enforcement trends by Thomas
DiBiagio, a Principal in the Washington, D.C. and Baltimore offices of NACWA
Legal Affiliate Beveridge & Diamond, PC. Mr. DiBiagio focuses his practice on
complex civil litigation, white collar criminal defense, compliance issues and
internal investigations. With over 18 years of experience before federal and
state courts, Mr. DiBiagio recently served as United States Attorney for the
District of Maryland.
In 2006, Late Breaking Legal Issues calls will be held on January 18, March 15, June 14, September 13, and December 13. All calls will be held from 2-3 p.m. eastern time. Dial-in information for the calls is posted in the legal section of NACWA’s Member Pipeline.
For More Information
New documents are posted regularly in NACWA’s active cases in the
Litigation Tracking section of the Member Pipeline. As always, please
feel free to contact NACWA General Counsel Alexandra Dunn at 202/533-1803 or
adunn@nacwa.org with any questions or
comments on NACWA’s legal activities.
CASE BRIEFS
After Oral Argument, Second Circuit Probes CWA
Flexibility
On December 2, in an unusual move following November 21 oral
argument, the U.S. Court of Appeals for the Second Circuit in New York directed
the parties in Catskill Mountains Chapter of Trout Unlimited, Inc. (TU) v.
City of New York (City) to file five page letters addressing two questions:
1) whether the Clean Water Act (CWA) allows the State to issue a National
Pollutant Discharge Elimination System (NPDES) permit that modifies the effluent
limitations that would otherwise apply to the discharge; and 2) if such
flexibility exists, whether the City could obtain a permit allowing it
continued use of its tunnel to transport drinking water. The case concerns TU’s
argument that the City is illegally discharging from its tunnel – which
moves water between reservoirs – without a NPDES permit. In 2001, the Second
Circuit agreed with TU and ordered the City to obtain an NPDES
permit. On remand, a lower federal court assessed the City $5.7 million
in penalties for operating without a permit. The present appeal concerns this
penalty assessment and issues related to the permitting.
In a favorable development, EPA released a 19-page memorandum in
August formally outlining the Agency’s position that as a general rule, water
transfers do not require NPDES permits. On November 3 the court allowed
the City to submit a supplemental brief on EPA’s new memorandum. Clearly,
the Second Circuit is wrestling with the many difficult issues raised in this
case. The ultimate decision of the Circuit will be of critical importance to
municipal water management decisions nationwide.
NACWA led an amicus curiae coalition of municipal organizations in this
case to assert in June 2004 that interbasin water transfers also should not be
subject to NPDES permits under the CWA – as such expansion of the permitting
program is inconsistent with the statute and would overwhelm the already
backlogged NPDES program. On October 28, the Second Circuit accepted NACWA’s
amicus curiae brief. We will report on further developments in this case
soon.
NACWA Backs Minnesota Members in Pre-TMDL
Permitting Case
On December 2, NACWA transmitted an amicus curiae brief to the
Minnesota Supreme Court supporting our Minnesota member agencies and the
Minnesota Pollution Control Agency (MPCA). In Cities of Annandale and Maple
Lake (Cities) NPDES/SDS Permit Issuance, the Minnesota Court of Appeals held
that MPCA improperly determined that an NPDES permit for the Cities would
not cause or contribute to a violation of water quality standards in a CWA §
303(d) listed water. MPCA reached this conclusion by finding that the new
discharge would be effectively “offset” by decreased discharges of the pollutant
of concern by other entities in the waterbody. NACWA’s amicus curiae
brief strongly supports the ability of permitting authorities like MPCA to
undertake such analyses. NACWA emphasizes that MPCA’s decision results in an
outcome that maximizes the protection of public health and the achievement of
water quality goals. We note that the Court of Appeals decision would reduce
incentive for utilities to upgrade technology, and would effectively impose a
moratorium on permitting in § 303(d) listed waterbodies where TMDLs are years
from completion. NACWA’s persuasive motion to enter the case as amicus curiae
was filed on October 21, and granted by the court on October 26. A decision in
the case is expected next year.
NACWA Supports EPA’s Effluent Guidelines
Activities
NACWA filed a November 23 brief before the U.S. Court of Appeals for
the Ninth Circuit in California to defend EPA’s effluent limitations guidelines
(ELG) program. NACWA’s latest filing in the ongoing case, Our Children’s
Earth Foundation v. EPA, notes that it is “undisputed that EPA has, in fact,
undertaken each of the actions … the Agency had a mandatory duty to perform”
under the ELG program. In our brief, NACWA urges the court to affirm the
district court’s May 2005 Order, which found that EPA is implementing the ELG
program in a manner consistent with the plain language of the CWA. Briefing in
the case continues in December. We will keep the membership apprised of further
developments in this important case in 2006.
Hearing Held On Overdue Air Toxics Rules
On November 22, the U.S. District Court for the District of Columbia
heard oral arguments in Sierra Club v. EPA, a 2001 case in which NACWA
intervened because it ultimately will result in a court-ordered deadline for EPA
to undertake several overdue Clean Air Act (CAA) rules for urban air toxics –
including for sewage sludge incinerators under CAA § 112(k). Sierra Club
wants the court to order EPA to complete the overdue rules by 2008. Calling
Sierra Club’s request “impracticable,” EPA has told the court it can
complete the rulemakings by 2010. A decision by the court should be rendered
soon.
Ninth Circuit Hears Groundwater Discharge
Permitting Case
On November 16, the U.S. Court of Appeals for the Ninth Circuit in
California heard oral argument in City of Healdsburg v. Northern California
River Watch. In the case, the lower court held that a hydrological
connection through groundwater between the City’s wastewater
percolation pond (part of its treatment system) and a nearby river made the
percolation pond a “tributary” to a navigable water and thus a “water of the
United States.” Therefore, the lower court held that City requires an
NPDES permit to discharge to its percolation pond. NACWA’s June 2004 amicus
curiae brief filed with the California Association of Sanitation Agencies
(CASA) and the Association of California Water Agencies (ACWA) highlighted that
expanding the NPDES permit program to groundwater discharges is contrary to
Congress’ intent. A decision from the Ninth Circuit should be rendered in early
2006.
NACWA & Virginia Municipalities Win Critical
Nutrient Case
On November 3, NACWA received a favorable decision from the Circuit
Court for the City of Richmond, Virginia in Chesapeake Bay Foundation (CBF)
v. Town of Onancock (Onancock). CBF's appeal focused on the Virginia
Department of Environmental Quality’s (VDEQ’s) handling of pre-TMDL permitting
issues when reissuing an NPDES permit to Onancock. The permit included
standard biochemical oxygen demand (BOD) and dissolved oxygen (DO) limits,
nitrogen and phosphorus monitoring, and a reopener for nutrient limits following
the adoption of wasteload allocations for nutrients. CBF asserted that
permit failed to take account of a long standing problem of low DO in the
tributaries of the Chesapeake Bay because it did not contain numeric limits for
nutrient discharges.
In an April amicus curiae brief, NACWA and the Virginia Association of Municipal Wastewater Agencies (VAMWA) supported VDEQ’s issuance of the permit, noting that VDEQ properly deferred imposing nutrient limits pending revision of the relevant water quality standards (WQS) and TMDL development.
In its ruling, the court agreed with NACWA and VAMWA, giving VDEQ the discretion to choose not to impose numeric water quality-based effluent limitations pending TMDL development. The court focused on the following aspects of the TMDL process to find Onancock’s permit lawful: 1) EPA's Virginia TMDL Consent Decree which allows until 2010 to adopt Bay TMDLs for nutrients; 2) VDEQ participation in the CWA "continuing planning process" for incorporation of TMDLs; 3) the continuing planning process currently underway to meet WQS, including setting numeric limits by 2010; and 4) that BOD and DO limits and nutrient monitoring were in place pending completion of WQS and TMDLs for nutrients.
This decision is valuable not only to NACWA members in Virginia, but also helpful precedent for agencies facing pre-TMDL permitting and phased TMDL implementation issues in other states. We will report on further developments in this case if and when they occur.
NACWA Input Supports Dismissal of Activists’
MS4 Permit Challenge
On October 28, EPA’s Environmental Appeals Board (EAB) granted an
October 19 request by Friends of the Earth (FOE) to dismiss its appeal of the
District of Columbia’s (District’s) municipal separate storm sewer (MS4) permit.
The dismissal follows a year of negotiations and helpful involvement in the
appeal by NACWA, 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).
In the appeal, FOE asserted that the District’s permit was improperly issued
because it failed to require District MS4 discharges to meet receiving WQS.
In July, Region 3 issued draft amendments to the District’s permit, which still would have effectively required the District’s MS4 discharges to meet WQS. Accordingly, the municipal coalition filed August comments with EPA Region 3 providing critical information regarding Congress’ 1987 addition of CWA § 402(p) to provide the specific standard for MS4s – that cities remove stormwater pollutants to the maximum extent practicable using best management practices. A final MS4 permit for the District, which is not expected to require WQS compliance for the discharges, is expected soon.
NACWA Files Amicus Brief on
Total Maximum “Daily” Loads
On October 26, NACWA and the CSO Partnership (CSOP) filed an
amicus curiae brief in the appeal by Friends of the Earth (FOE) to the U.S.
Court of Appeals for the District of Columbia Circuit of the TMDLs for
biochemical oxygen demand (BOD) and total suspended solids (TSS) for the
District’s Anacostia River. FOE argues that Congress’ use of the word “daily” in
CWA § 303(d) meant that TMDLs can only be expressed as true 24-hour loads in
permits. NACWA and the CSOP’s brief highlighted how FOE’s asserted
interpretation undermines both the CWA § 402(p)(iii) program for MS4s and CWA §
402(q)’s program for combined sewer system long-term control plans (LTCPs). Both
EPA and NACWA member agency the District of Columbia Water and Sewer Authority
filed their opening briefs in the case on October 11. Briefing in the case
continues through December. Oral argument will be scheduled in early 2006.
Appellate Court Affirms Blending Decision as
NACWA and NRDC Release Consensus
On October 17, the D.C. Circuit Court affirmed the lower court’s
November 2004 decision to dismiss a legal challenge to EPA Region 3, 4, and 6’s
anti-blending policies. In Pennsylvania Municipal Authorities Association
(PMAA) v. EPA, the lower court held that Regional policies are not “final
agency actions” that can be challenged in court. NACWA did not participate in
these recent legal developments, instead turning its attention to working with
the Natural Resources Defense Council (NRDC) to develop a compromise blending
policy to present to EPA. On October 27, NACWA and NRDC jointly met with EPA to
review the compromise policy, and released it publicly. Since that time, using a
jointly developed PowerPoint presentation, NACWA and NRDC have conducted
numerous briefings for key federal and state offices and officials. Successful
briefings have been held for the Assistant Administrator for Enforcement and
Compliance Assurance (OECA) and OECA staff; EPA’s General Counsel and legal
staff; the Office of Management and Budget; Senate Environment and Public Works
staff; all 10 EPA Regional Water Division Directors; the Association of State
and Interstate Water Pollution Control Administrators (ASIWPCA); and other
wastewater and environmental groups. The ultimate conclusion of each briefing
has been compliments to both NACWA and NRDC on the agreement. Although no final
decisions have been made, it appears that ultimately, we will see our agreement
with NRDC in some final form from EPA soon.
Phase II Permit Appeal Raises Central CSO
Policy Questions
The U.S. Environmental Appeals Board (EAB) has stayed until early
2006 the appeal of the District of Columbia Water and Sewer Authority’s (DC
WASA) Phase II combined sewer overflow (CSO) permit appeal while settlement
discussions are conducted. The EAB has taken note of NACWA and the CSOP’s May
motion to participate in the appeal. This case has the potential to raise
several precedent setting CSO issues, including: whether EPA has the legal
authority to include water quality based requirements in CSO Phase II permits in
addition to LTCP derived numeric performance standards; and whether inclusion of
a general narrative standard violates a permittee’s ability to know, in advance,
the scope of its compliance obligations. If the case proceeds, NACWA and the
CSOP will provide a national perspective on these questions.
CWA-SDWA Interplay Case Remains On Hold
Action remains on hold before the Kentucky Environmental and Public
Protection Cabinet (KEPPC) in the permit appeal raising questions on how the CWA
and the Safe Drinking Water Act (SDWA) work together. In City of Cincinnati,
OH (Greater Cincinnati Water Works (GCWW)) v. Sanitation District No. 1, KY (SD
No. 1), GCWW appealed the NPDES and construction permits issued by
the KEPPC to SD No. 1’s planned regional wastewater facility. The facility will
consolidate three outdated plants along the Ohio River. GCWW alleges that
the NPDES permit should contain discharge limits for endocrine disrupters,
cryptosporidium, giardia, viruses, and other pollutants for which no
Kentucky WQS exist. Construction complications however, may require relocation
of the new facility's outfall. This may lead to permit changes, making the
appeal moot. Should the case proceed, NACWA notified the KEPPC in early 2005
that we would like to file an amicus curiae brief.
Stormwater Fee Case Moves at Slow Pace
NACWA is participating with other municipal groups as amicus
curiae to support Cincinnati in a stormwater fee dispute with a federal
facility in City of Cincinnati v. U.S. The case concerns a Department of
Health and Human Services facility within the City’s service area that has
refused to pay over $100,000 in past-due invoices for stormwater services. The
federal facility alleges that the service charges are an impermissible “tax” on
the federal government. NACWA was granted amicus curiae 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 new judge was assigned in October
2004, dramatically slowing progress in the case. A schedule of activity should
be established soon.