Member Pipeline - Legal - Alert (Leg 06-01)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | January 26, 2006 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 06-01 |
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 developments in NACWA’s litigation matters.
2005 Law Seminar Praised by Attendees
The National Office has completed its review and summary of attendee
evaluations from the 2005 Developments in Clean Water Law: A Seminar for
Public Agency Attorneys & Managers (Seminar) held November 9-11, 2005
at the Inn at Loretto, Santa Fe, NM. Favorable comments offered by Seminar
attendees included: “one of the best focused and presented conferences I have
attended; will plan to attend in the future;” “the best legal conference I go to
in the environmental field;” and “as a first time attendee, I was amazed at the
effort by NACWA and its members to include intriguing conversations and
conference topics.” Topic suggestions for the 2006 Seminar included:
managing outside counsel cost effectively; U.S. Environmental Appeal Board (EAB)
developments; and a science, chemistry, and engineering update for lawyers. The
2005 presentations are posted on NACWA’s Conference & Meetings webpage at
http://www.nacwa.org/meetings/.
Information regarding the 2006 Seminar dates and location will be
announced soon.
Late Breaking Legal Issues Calls
NACWA completed its 2005 Late Breaking Legal Issues call
series on December 13, 2005 with 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. The 2006
series began on January 18, with a review of use attainability analysis (UAA)
issues presented by Lori A. Terry, attorney with the Seattle, WA office of NACWA
Legal Affiliate Foster Pepper PLLC.
Future 2006 calls will be held on March 15, June 14, September 13, and December 13. All calls are held from 2:00-3:00 p.m. eastern time. The dial-in information for Late Breaking Legal Issues 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
Appeals Court To Hear Total Maximum “Daily”
Load Case in February
The U.S. Court of Appeals for the District of Columbia (D.C. or
District) Circuit will hear oral arguments on February 16 in the appeal by
Friends of the Earth (FOE) of the total maximum daily loads (TMDLs) for
biochemical oxygen demand (BOD) and total suspended solids (TSS) for the
District’s Anacostia River. In FOE v. EPA, NACWA and the CSO Partnership
(CSOP) filed an October 2005 amicus curiae brief rebutting FOE’s position
that Congress’ use of the word “daily” in Clean Water Act (CWA) § 303(d) means
that TMDLs can only be expressed as true 24-hour loads in permits. NACWA
and the CSOP’s brief highlighted how FOE’s interpretation undermines both the
CWA § 402(p)(iii) program for municipal separate storm sewer systems (MS4s) and
CWA § 402(q)’s program for combined sewer system long-term control plans
(LTCPs). EPA and NACWA member agency the D.C. Water and Sewer Authority filed
final briefs in the case in December 2005.
Amici Outnumber Parties in Minnesota
Pre-TMDL Permitting Case
Significant activity continues in the case of Cities of Annandale
and Maple Lake (Cities) National Pollutant Discharge Elimination System (NPDES)
Permit Issuance, as national environmental advocacy groups including the
Natural Resources Defense Council (NRDC), Trout Unlimited, and American Rivers
filed January 5 amicus curiae briefs before the Minnesota Supreme Court
opposing the positions taken by NACWA, our Minnesota member agencies, and the
Minnesota Pollution Control Agency (MPCA). The Minnesota Court of Appeals held
last year that MPCA improperly determined 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. In the case, the Cities
are combining two outdated facilities and replacing them with one, state-of-the
art facility.
NACWA’s December 2, 2005 amicus curiae brief strongly supported the ability of permitting authorities like MPCA to undertake such analyses. NACWA emphasized that MPCA’s decision promotes a facility upgrade that will maximize the protection of public health and the achievement of water quality goals. To find against the MPCA would reduce the incentive for utilities to upgrade technology, and effectively impose a moratorium on permitting in § 303(d) listed waterbodies where TMDLs are years from completion. In contrast, the environmental advocacy groups allege that MCPA’s failure to complete a TMDL precludes issuance of the permit, and that prohibiting the permit will serve to enhance efforts to remediate phosphorus loadings in the area and to promote area-wide management of NPDES discharges. A decision in this case is expected later this year.
EPA Releases NACWA/NRDC Peak Flows Compromise
As Legal Battle Ends
On December 22, 2005, EPA proposed for public comment a policy on
peak wet weather flow “blending” based wholly on a compromise agreement
developed by NACWA and NRDC. The comment period closed on January 23, with just
over 40 comments submitted – a stark contrast to the 98,000 comments made on the
November 2003 proposal. NACWA and NRDC’s efforts to develop a compromise were
well spent, as on October 17, 2005 the U.S. Court of Appeals for the D.C.
Circuit affirmed the lower court’s November 2004 decision in Pennsylvania
Municipal Authorities Association (PMAA) v. EPA to dismiss the legal
challenge to EPA Region 3, 4, and 6’s anti-blending policies. The D.C. Circuit’s
decision confirms that the Regional policies in question were not “final agency
actions” that could be challenged in court. Given the inability of the court to
resolve the blending issue, the NACWA/NRDC compromise released by EPA marks the
most positive step forward in many years on the controversial blending issue.
Central CSO Policy Questions Raised By
Utility’s Phase II Permit Appeal
On December 19, 2005, the EAB stayed until March 16 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 continue. The
EAB has noted NACWA and the CSOP’s May 2005 motion to participate in the appeal
should it progress. This appeal 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 appeal proceeds, NACWA and the CSOP will
provide the EAB with a national perspective on these questions.
NACWA Provides Second Circuit Key Information
on Variances
The case of Catskill Mountains Chapter of Trout Unlimited, Inc. (TU)
v. City of New York (City) concerns TU’s argument that the City
is illegally discharging from its tunnel – which moves drinking 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 the penalty assessment and issues
related to the permitting. 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. In October 2005, the
Second Circuit accepted NACWA’s amicus curiae brief.
On December 2, 2005, in an unusual move following November 21, 2005 oral argument, the U.S. Court of Appeals for the Second Circuit in New York asked for supplemental letters on two key issues. First, the court asked whether CWA § 302 allows the State to relax, in an NPDES permit, effluent limitations required to meet state water quality standards (WQS) under CWA § 301. In a December 15, 2005 letter filed jointly with the National League of Cities (NLC), NACWA explained that CWA § 302 applies only to the U.S. Environmental Protection Agency (EPA), and gives only EPA the supplemental authority to set effluent limitations in particular cases and the corresponding CWA § 302(b)(2)(A) authority to relax such requirements if needed. NACWA’s letter thus clarified that CWA § 302 does not provide a mechanism for relaxing limitations limitations needed to meet state-promulgated WQS. Second, the court asked whether the State could issue a WQS variance to allow the City continued use of its tunnel to transport drinking water. On this point, NACWA’s letter agreed that states may grant variances from their WQS to the same extent that they may modify or relax the standards. However, NACWA discouraged the court from relying upon the “potential availability of a variance that has not been granted, and may ultimately be determined to be unavailable” to the City. A decision from the Second Circuit is expected later this year.
CWA-SDWA Interplay Case On Hold Through May
On December 14, 2005, the Kentucky Environmental and Public
Protection Cabinet (KEPPC) placed activity on hold until May 2006 due to
expected changes to the permit on appeal, which could render moot this dispute
questioning 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. Should the case proceed, NACWA
notified the KEPPC in early 2005 that we would like to file an amicus curiae
brief.
NACWA Continues Support of EPA Effluent
Guidelines Activities
EPA filed its final brief on December 2, 2005 in the appeal by Our
Children’s Earth Foundation (OCEF) of the lower California federal court’s
May 2005 Order upholding the Agency’s recent actions to implement the CWA’s
effluent limitations guidelines (ELG) program. NACWA filed its brief with the
U.S. Court of Appeals for the Ninth Circuit on November 23, 2005. NACWA’s filing
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 CWA’s ELG
program. NACWA urges the court to affirm the district court’s Order, which held
that EPA has been implementing the ELG program in a manner consistent Congress’
intent under the CWA. Similarly, EPA’s December final brief asserts that “the
district court’s orders and judgments should be affirmed in all respects.” Oral
argument is expected to be scheduled in California in late 2006 or early 2007.
Hearing Held On Overdue Air Toxics Rules
On November 22, 2005, 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 setting a schedule
should be rendered soon.
Ninth Circuit Hears Groundwater Discharge
Permitting Case
On November 16, 2005, 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 cover groundwater
discharges is contrary to Congress’ intent. A decision from the Ninth Circuit
should be rendered in 2006.
NACWA & Virginia Municipalities Win Critical
Nutrient Case
On November 3, 2005, 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 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 2005 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.
Activists Dismiss MS4 Permit Challenge
On October 28, 2005, the EAB granted a request by Friends of the
Earth (FOE) to dismiss its appeal of the District of Columbia’s (District’s) 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 2005, Region 3 issued draft amendments to the District’s permit, which still would have effectively required the District’s MS4 discharges to meet WQS. NACWA and the municipal coalition filed August 2005 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 in early 2006.
Stormwater Fee Case Stalled
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 in Fall 2004 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 to the case
in October 2004, however, and no activity has occurred since that time. Given
the long delay, a schedule for future activity should be set this year.