Member Pipeline - Legal - Alert (Leg 06-07)
| To: | Members & Affiliates, Legal Affairs Committees |
| From: | National Office |
| Date: | September 6, 2006 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 06-07 |
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.
Late Breaking Legal Issues Calls
NACWA’s 2006 Late Breaking Legal Issues call series will continue on
September 13 and December 13. Please note that the September 13 call will
be held from 1:00–2:00 pm eastern time. This call will focus on court
decisions implementing the June 19 U.S. Supreme Court’s decision in Rapanos
et ux., et al. v. United States (together with Carabell et al. v. U.S.
Army Corps of Engineers et al., including the recent decision (discussed
below) by the U.S. Court of Appeals for the Ninth Circuit in City of
Healdsburg v. Northern California River Watch. Our December 13 call will be
held at the customary 2:00–3:00 p.m. eastern time. Dial-in information and
handouts from recent calls can be found on the legal section of NACWA’s
Member Pipeline.
Top Harvard Law Professor to Keynote 2006 Law
Seminar
This year’s Developments in Clean Water Law: A Seminar for Public
Agency Attorneys & Managers (Seminar) will take place November 15-17 at the
Sheraton Boston Hotel, MA. NACWA is presenting this year’s Seminar in
cooperation with both the New England Water Environment Association (NEWEA)
(with membership in Connecticut, New Hampshire, Maine, Massachusetts, Rhode
Island, and Vermont) and the American Bar Association (ABA’s) Section of
Environment, Energy & Resources. Registration information for the Seminar
will be available soon at
www.nacwa.org/meetings/.
NACWA is pleased to announce that Professor Jody Freeman, Director of the Harvard Law School Environmental Law Program will Keynote the 2006 Seminar. Professor Freeman’s scholarship focuses on public-private collaboration in governance, regulatory innovation, modular environmental regulation, negotiated approaches to regulation, and dispute resolution. Previously, Professor Freeman taught for 10 years at the University of California Los Angeles (UCLA), and helped found UCLA’s Environmental Law and Policy Program. In her Keynote, Professor Freeman will address the role local governments can play in fostering environmental – particularly clean water – progress, and how they can help overcome barriers to modular environmental regulation (e.g., political boundaries, inflexible statutes, silo-thinking, fragile infrastructure, and an aggressive public presence in the form of citizen suits). She also will address how local governments can advance modular environmental regulatory concepts.
John Cruden, Esq., Chief of the Environmental Enforcement Division, U.S. Department of Justice, DC, is confirmed to provide the Seminar’s Closing Address. Also invited is Robert Varney, Administrator of U.S. Environmental Protection Agency (EPA) Region 1 (New England).
The Seminar panels will bring together top in-house and private firm practitioners to address some of the most practical and cutting-edge issues ever examined by NACWA. Scheduled topics include: traditional and non-traditional defensive tools (e.g., upset, bypass, permit shield, lab error, force majeure, common law defenses); innovation in the structuring of relationships between in-house and outside counsel; how, through contract and other mechanisms, regional facilities have worked with satellite systems to overcome obstacles and make environmental progress; management of electronic information; citizen suits trends; negotiation with states, federal agencies, and activist groups – simultaneously; making water quality models work for a public agency; legal aspects of watershed trading; and compliance.
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’s General Counsel Alexandra Dunn at 202/533-1803 or
adunn@nacwa.org with any questions
or comments on NACWA’s legal activities.
CASE BRIEFS
Oral Argument Set in Case of Inappropriate
Attorneys Fee Award
Oral argument will be held on September 15 in the case of U.S. v.
Board of County Commissioners of Hamilton County, Ohio. In the case, the
U.S. District Court for the Southern District of Ohio held that the Sierra Club
was a “catalyst” to NACWA member agency the Metropolitan Sewer District of
Greater Cincinnati (MSDGC) entering a consent decree, and awarded Sierra Club $1
million in attorneys’ fees under the CWA’s citizen suit provision(§ 505(d)).
NACWA filed an amicus curiae brief before the U.S. Court of Appeals for
the Sixth Circuit to support MSDGC. NACWA’s brief highlighted that the catalyst
theory has been soundly rejected by the U.S. Supreme Court and that the Sierra
Club could not be found as a “prevailing or substantially prevailing party”
under the CWA, where Sierra Club not only opposed entry of the decrees but also
was not a party to the decrees. NACWA’s brief states that the court order
“greatly enlarges the scope of the fee-shifting provisions in the CWA and
significantly alters the balance intended by Congress when it incorporated the
citizen suit provision into the Act’s overall enforcement scheme.” We will
report on the argument in the coming weeks.
City, U.S. Seek Clarification in Controversial
“Tributary” Case
On August 11, the U.S. Court of Appeals for the Ninth Circuit ruled
in City of Healdsburg (Healdsburg) v. Northern California River Watch (River
Watch) that Basalt Pond (Healdsburg’s manmade wastewater percolation pond
that is also involved in gravel mining operations) is a "waters of the United
States" for purposes of CWA regulation because Basalt Pond contains adjacent
wetlands with a "significant nexus" to the Russian River, a navigable "waters of
the United States." Therefore, the court held that the City must obtain an NPDES
permit to discharge to its percolation pond. The decision is important because
it is one of the first decisions to be issued following the U.S. Supreme
Court’s June 19 decision in Rapanos et ux., et al. v. United States
(together with Carabell et al. v. U.S. Army Corps of Engineers et al. (Rapanos)).
The City argued against Basalt Pond being characterized as a “waters of the United States” on several grounds, including: (1) Basalt Pond is not an “adjacent wetlands” to the Russian River; (2) the “gravel mining” and “waste treatment” exemptions to the definition of “waters of the United States” apply; and (3) Basalt Pond cannot be considered a "tributary" waters of the United States based solely on discharges from Basalt Pond to groundwater that may be hydrologically connected to the Russian River, as Congress specifically determined that such discharges are not subject to the CWA. NACWA’s June 2004 amicus curiae brief filed jointly 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 discharges to hydrologically connected groundwater based on the theory that groundwater and/or ponds are "tributary" waters of the U.S. is contrary to Congress’ intent.
Upholding the lower court’s decision that Basalt Pond constitutes a “water of the United States,” the Ninth Circuit applied the “significant nexus” test recently set forth by Justice Kennedy in the U.S. Supreme Court’s Rapanos decision. The Ninth Circuit concluded Basalt Pond constitutes an “adjacent wetland” with a "significant nexus" to the Russian River, and therefore, is a “waters of the United States.” In support of its conclusion, the Ninth Circuit identified evidence that discharges to the Basalt Pond significantly affect the chemical, physical, and biological integrity of the Russian River, including: (1) at least 26 percent of Basalt Pond’s volume annually reaches the Russian River through the groundwater aquifer and other sources; (2) Basalt Pond supports an ecosystem of bird, mammal, and fish populations that are integral and indistinguishable from the Russian River ecosystem; and (3) chloride concentrations in the Russian River are increased due to discharges from the Basalt Pond. Thus, the Healdsburg decision makes clear that in the Ninth Circuit, Justice Kennedy’s "significant nexus" test “provides the controlling rule of law” – a question essentially left unclear by the fractured 5-4 plurality Rapanos court. The Ninth Circuit specifically denied application of the “gravel mining” and “waste treatment” exemptions to the definition of “waters of the United States.”
In a positive development for NACWA, CASA and ACWA, the Ninth Circuit did not endorse the lower court’s holding that Basalt Pond, or the underlying groundwater, is a "tributary" waters of the United States.
Healdsburg filed a petition for rehearing before the court on August 31. River Watch also filed a petition for rehearing on August 28. Notably, the U.S. Government, as amicus curiae, filed a motion for clarification on August 23. NACWA, CASA, and ACWA may file an amicus curiae in support of Healdsburg’s request for rehearing by September 7. Given the many requests for further action by the court, it is likely that the Ninth Circuit make take the case up again. We will keep the membership informed of further developments in this evolving field of law in the coming months.
Court Denies City Rehearing Petition; NACWA
Supports Water Transfer Rule
On August 25, the U.S. Court of Appeals for the Second Circuit denied
NACWA member agency New York City Department of Environmental Protection’s (NYCDEP’s)
request that the court revisit its June 13 ruling in Catskill Mountains
Chapter of Trout Unlimited, Inc. (Catskills) v. City of New York. In the
ruling, the court confirmed that NYCDEP must obtain an National Pollutant
Discharge Elimination System (NPDES) permit for the discharge from its water
transfer tunnel. The tunnel moves untreated natural drinking water between two
waterbodies. NYCDEP argued that the court failed to consider EPA’s June 7
proposed rule to exempt such transfers from the NPDES program.
On August 4, NACWA filed comments supporting the proposed water transfer rule. If finalized, EPA’s rule would codify the Agency’s longstanding position that water transfers do not require NPDES permits – and would counter the court’s Catskills decision, as well as clear up uncertainty created by the U.S. Supreme Court in 2004’s South Florida Water Management District v. Miccosukee Tribe of Indians (Miccosukee). With various municipal groups, NACWA filed amicus curiae briefs in Miccosukee and Catskills, highlighting the administrative difficulty of adding thousands of sources to the already backlogged NPDES permit program, and the importance of local government autonomy over water management decisions.
NACWA Supports Daily Load Case Appeal to the
U.S. Supreme Court
On August 24, NACWA and the Wet Weather Partnership (WWP) asked the
U.S. Supreme Court to review the April 25 decision of the U.S. Court of Appeals
for the District of Columbia (D.C.) Circuit in Friends of the Earth (FOE) v.
EPA that all total maximum daily loads (TMDLs) must be expressed in daily
terms only. NACWA and the WWP filed the amicus curiae brief to support a
petition to the Supreme Court filed by NACWA and WWP member the D.C. Water and
Sewer Authority (DC WASA). DC WASA sought review of the D.C. Circuit’s decision
on July 24.
Specifically, the D.C. Circuit held that daily pollutant load limits are required for all TMDLs and that the seasonal and annual averages contained in the TMDLs for dissolved oxygen (DO) and total suspended solids (TSS) for D.C.’s Anacostia River – which EPA found protective of water quality – were inconsistent with the Clean Water Act (CWA). The D.C. Circuit directed the lower court to vacate the two non-daily TMDLs. NACWA and the WWP’s amicus curiae brief identifies reasons the Supreme Court should take the case and overturn the D.C. Circuit’s decision. In particular, the brief explains the adverse regulatory and environmental consequences if the non-daily TMDLs were invalidated. The brief also notes that the “ramifications of the D.C. Circuit decision extend far beyond the Anacostia River in the District of Columbia and will significantly impact NACWA’s CSO member communities nationwide.” Furthermore, NACWA and WWP highlight that the court’s decision conflicts with a 2001 ruling by the U.S. Court of Appeals for the Second Circuit, which held a “daily” interpretation of the CWA’s language “absurd.”
In late July, EPA circulated a draft memorandum on how TMDLs could be designed to be consistent with the FOE decision. On August 3, NACWA provided comments expressing concern with EPA’s approaches. Also during August, EPA and FOE exchanged motions seeking a delay of the vacature of the two TMDLs at issue. EPA is seeking 18 months; FOE is seeking six months. EPA’s pleadings notes that if the court orders a six month deadline, EPA may amend its regulation declaring all pollutants suitable for daily loads – an outcome FOE would find undesirable. We will keep the membership informed of important developments in this case in the coming weeks.
Key CSO Phase II Permitting Case Dismissed in
Part, Stayed in Part
On August 23, EPA's Environmental Appeals Board (EAB) dismissed the
FOE and DC WASA appeal of DC WASA’s Phase II combined sewer overflow (CSO)
permit. The dismissal came after EPA Region III issued a modified permit on
August 18, rendering the appeal moot. The EAB stayed one issue in the case until
February 20, 2007 – DC WASA's request for EAB review of Region III's decision
not to include in the permit a compliance schedule for implementation of DC
WASA's long-term control plan (LTCP).
In mid-2005, NACWA and the WWP motioned to participate in this appeal due to its precedent setting CSO issues (e.g., 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; whether inclusion of a general narrative standard violates the permittee's ability to know, in advance, the scope of its compliance obligations). NACWA and the WWP may comment on the modified permit by the September 19 deadline. NACWA will report on developments as they occur.
NACWA Comments on SSIs; Opinion on Overdue
Clean Air Act Standards Released
On August 14, NACWA filed comments on EPA’s June 28 proposal to
reopen its final regulation for other solid waste incineration units (OSWI)
under Clean Air Act (CAA) § 129 and cover sewage sludge incinerators (SSIs). 70
Fed. Reg. 74,870. EPA’s rulemaking is the latest development in response
to a decade long effort by Sierra Club to bring SSIs under CAA § 129. We will
report on the outcome of this rulemaking in the coming months.
On August 2, the U.S. District Court for the District of Columbia issued a written opinion in the 2001 Sierra Club v. EPA case concerning EPA’s overdue air toxics regulations, including those for urban SSIs under CAA § 112(k). In the Opinion, the court supports its direction that EPA promulgate dozens of overdue CAA air toxics regulations between 2006 and 2009. EPA claimed repeatedly in briefs that such a schedule was impossible, however, the court states it “will not second-guess Congress’s determination that it would be (or would have been) possible to regulate these sources within the time frame set by the statute.” Opinion at 20. The court notes that “EPA’s only justifications for seeking huge amounts of additional time . . . are the asserted complexity of the regulatory tasks before it and the fact that other regulatory priorities demand resources that might be devoted to meeting EPA’s obligations under the Clean Air Act” and that “neither of these arguments is sufficient to excuse EPA from expeditious compliance.” Id. at 21-22. Based upon filings in the case, if EPA determines air quality data supports a rule for urban SSIs, the Agency likely would propose a rule in 2008 and finalize it in 2009.
Favorable MS4 Permit Still on Hold
In recent weeks, the EAB placed on hold until October 4 the April 17
appeal by FOE and Defenders of Wildlife (Defenders) of the March 2006 Final
Modification to the District of Columbia’s (District’s) municipal separate
storm sewer (MS4) permit. The EAB also placed on hold the April 12 technical
appeal of the Final Modification by the District and NACWA member agency
DC WASA.
In the appeal, FOE and Defenders cite the permit’s failure to “contain effluent limits adequate to assure compliance with water quality standards.” They allege that “pollutant specific, numeric limits” are “presumptively required” by the CWA. Contrary to the CWA’s legislative history, NACWA’s long-standing positions, and prior court decisions, the activists assert that CWA § 402(p)’s specific standard for MS4s – that cities remove stormwater pollutants to the maximum extent practicable (MEP) using best management practices – allows BMPs only where numeric limits are infeasible and where it is shown that other limitations will assure compliance with water quality standards. 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) plan to continue our multi-year involvement in this case to protect the MEP standard for MS4 discharges.
Effluent Guidelines Case Awaits Oral Argument
Date
On July 21, Our Children’s Earth Foundation (OCEF) brought to the
attention of the U.S. Court of Appeals for the Ninth Circuit a decision of the
U.S. District Court for the Central District of California – NRDC v. EPA
(June 27, 2006). OCEF asserted that the NRDC decision supports OCEF’s argument
that EPA has little discretion under the effluent limitations guidelines (ELG)
program. Whether the Ninth Circuit uses the NRDC decision will be unknown
until oral argument in early 2007. As an intervenor in the case in support of
the Agency, NACWA urged the appeals court in November 2005 to affirm the finding
that EPA is implementing the ELG program properly and consistent with Congress’
intent. NACWA plans to continue its support for the Agency by seeking an
opportunity to participate in oral argument.
NACWA Awaits Opportunity to File Amicus
Curiae Brief with Ohio Agencies
On July 19, NACWA’s Board approved the Association working with the
Association of Ohio Municipal Wastewater Agencies (AOMWA) on an amicus curiae
brief in a case the City of Salem, OH (Salem) will file to challenge
EPA’s September 2005 approval of phosphorus TMDLs for several Ohio rivers. EPA’s
approval was inappropriate because the Ohio Environmental Protection Agency
(Ohio EPA), using an internal technical guidance document, developed the TMDLs
based on “target values” rather than real world conditions. These TMDLs are now
the source of stringent phosphorus effluent limitations in wastewater NPDES
permits. NACWA and AOMWA are now awaiting Salem’s commencement of the
case and will file the amicus curiae brief at the appropriate time.
Stormwater Fee Case Assigned to New Judge;
Still Awaits Action
On June 26, a new judge was assigned to the case of City of
Cincinnati (City) v. U.S., which 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. No activity has occurred in this case since October 2004, when the
case was assigned to yet a different judge. Given the long period of inactivity,
NACWA expects a schedule for the case to be set soon. NACWA was granted
amicus curiae status in the case in Fall 2004 to support the City with the
National League of Cities (NLC), the National Association of Flood and
Stormwater Management Agencies (NAFSMA), and the American Public Works
Association (APWA).
Clean Water Act-Drinking Water Act Case
Remains on Hold
The 2004 appeal by Greater Cincinnati Water Works (GCWW) of permits
issued to NACWA member agency Sanitation District No. 1, KY’s (SD No. 1’s) new
regional wastewater treatment facility is one of the first truly cross-cutting
clean water/drinking water cases to progress nationwide. On May 9, the Kentucky
Environmental and Public Protection Cabinet (KEPPC) extended its hold on legal
activity in the case to November 13 while outfall relocation discussions – which
could render the case moot – continue.
In the case, GCWW has expressed concern that the SD No. 1’s new wastewater facility will be a source of problematic pollutants at GCWW’s downstream drinking water plant. Such pollutants include endocrine disrupters, cryptosporidium, giardia, and viruses. NACWA notified the KEPPC in early 2005 that, if the appeal moves forward, NACWA will file an amicus curiae brief in the dispute to support SD No. 1.
Decision Awaited in Minnesota Pre-TMDL
Permitting Case
On May 3, the Minnesota Supreme Court heard the case of Cities of
Annandale and Maple Lake (Cities) NPDES Permit Issuance. The case concerns
the Minnesota Court of Appeals’ 2005 holding that the Minnesota Pollution
Control Agency (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 specifically found that the new discharge would be
effectively “offset” by decreased discharges of the pollutant of concern by
other entities in the waterbody. NACWA’s December 2005 amicus curiae
brief 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, while 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 soon.
Bay Foundation Seeks Reversal of Key NACWA
Victory
On April 3, the Chesapeake Bay Foundation (CBF) filed a motion asking
the Circuit Court for the City of Richmond, Virginia to reverse its favorable
November 3, 2005 decision in CBF v. Town of Onancock (Onancock). In the
decision, the court agreed with the position expressed by NACWA and the Virginia
Association of Municipal Wastewater Agencies (VAMWA) in an April 2005 amicus
curiae brief – that the Virginia Department of Environmental Quality (VDEQ)
had the discretion not to impose numeric water quality-based effluent
limitations when reissuing Onancock’s NPDES permit pending TMDL
development. The court’s decision is valuable to NACWA members in Virginia, and
helpful precedent for agencies facing pre-TMDL permitting and phased TMDL
implementation issues in other states.
In the coming months, NACWA and VAMWA may file a brief statement supporting the November decision and urging the court to reject the new motion. We will report on further developments in this case as they occur.