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NACWA Litigation Tracking

Member Pipeline - Legal - Litigation Tracking

Cities of Burbank & Los Angeles v. State Water Resources Control Board Environmental Defense Center Inc. v. EPA Gearhart v. Horinko Missouri Coalition for the Environment v. Leavitt Bishop and Jarrett v. The Water Works and Sanitary Sewer Board of the City of Montgomery South Florida Water Management District v. Miccosukee Indian Tribe, et al. City of Anderson v. South Carolina DHEC City of Cincinnati v. United States PMAA v. Leavitt Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York Ohio Valley Environmental Coalition, et al., v. Whitman Edison Electric Institute et al. v. EPA Piney Run v. Carroll County Friends of the Earth v. EPA Sierra Club v. Leavitt American Farm Bureau Federation v. Horinko EarthJustice v. EPA Friends of the Earth v. EPA Our Children’s Earth Foundation v. EPA City of Healdsburg v. Northern California River Watch Pronsolino v. Nastri Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock) Sanitation District No. 1 City of Salem, OH v. EPA United States Environmental Protection Agency v. Defenders of Wildlife Environmental Defense Center Inc. v. EPA Washington State MS4 Permit Appeal
Click on a dot on the map to go to the case description and available documents.
Cases are listed in the state where they originated.

Table of Contents

Active Cases
Last Updated: 07/25/2007

Clean Water Act/Endangered Species Act


Water Quality Criteria/Standards


Total Maximum Daily Loads


Citizen Suits/Attorney’s Fees


Clean Water Act/Safe Drinking Water Act


Effluent Limitation Guidelines


Clean Water Act Jurisdiction


MS4 Permits/Fees

Completed Cases

Water Transfers

  • Catskill Mountains v. NYC Catskill Mountains v. NYC (appeal of requirement for NPDES permit for interbasin transfer of natural, untreated water)

 

SSI Regulations


Total Maximum Daily Loads


Water Quality Criteria/Standards


Blending


Citizen Suits


Testing Methods


MS4 Permits


Water Transfer


Biosolids

  • Gearhart v. EPA (consent decree regarding EPA’s Clean Water Act biosolids regulations)


Permit Shield Defense

Washington State MS4 Permit Appeal
The Washington State Department of Ecology issued a number of Phase I and Phase II stormwater permits to municipalities across the state on January 17, 2007. These permits cover municipal stormwater discharges for the majority of cities and counties in the State of Washington. In addition to requiring that permittees control discharges of pollutants based on the “maximum extent practicable” (MEP) standard, the permits also require that the discharges comply with state water quality and toxicant standards. Washington State’s surface water quality regulations contain numeric criteria for many conventional and toxic pollutants. The permit’s requirement to comply with state water quality and toxicant standards, therefore, requires compliance with the regulation’s numeric criteria. Accordingly, many of the permittees, including the three NACWA members mentioned above, have decided to challenge the permits. The municipalities are specifically challenging the permit provision requiring compliance with the state water quality standards on the grounds that such a condition is unlawful and inappropriate because it requires permittees to comply with standards that are not legally required and are not otherwise reasonable, justifiable, and supported by substantial evidence. Additionally, the municipalities are also challenging the provision on the grounds that they have not been granted sufficient time in which accomplish the required actions.

Although there are a variety of other issues involved in the appeal, NACWA has been asked by its Washington State members to file an amicus brief in the matter solely on the issue of whether the requirement to comply with water quality standards is appropriate in stormwater permits. To this end, NACWA’s brief would argue the Association’s longstanding position that any requirement for municipal stormwater permits to meet water quality standards is inappropriate and illegal, especially if there are numeric limits for pollutants. NACWA’s position in this case would be similar to positions the Association has taken in other stormwater litigation, specifically the current case involving the District of Columbia’s municipal stormwater permit in which NACWA is involved. NACWA’s Board approved participation in this case at its July 2007 meeting, and NACWA will file a brief in the case by October 1, 2007 supporting the municipalities in their challenge to the state MS4 permits.

 

United States Environmental Protection Agency v. Defenders of Wildlife
 The U.S. Supreme Court issued a major environmental ruling on June 25 in U.S. Environmental Protection Agency (EPA) v. Defenders of Wildlife, embracing an argument made by NACWA when it found that the Endangered Species Act (ESA) does not trump the Clean Water Act (CWA) on issues of delegating National Pollutant Discharge Elimination System (NPDES) permitting authority to the states. In making its ruling, the Court noted that the CWA “commands that the EPA “shall” issue a permit whenever all…exclusive statutory prerequisites are met,” and further stated that adding ESA requirements on top of the CWA is inappropriate because reading the ESA so broadly “would thus partially override every federal statute mandating agency action by subjecting such action to the further condition that it pose no jeopardy to endangered species.” This reasoning parallels the arguments NACWA put forth in its February 20 amicus curiae brief, which asserted that the CWA lays out several factors EPA must consider when delegating NPDES authority, and ESA considerations are not among the permitted statutory considerations. NACWA also put forth in its brief that although Congress enacted the ESA after the CWA was passed, the ESA was never intended to supersede the CWA. The Court picked up on this reasoning, and stated that “we will not infer a statutory repeal unless the later statute expressly contradict[s] the original act or unless such a construction is absolutely necessary . . . in order that [the] words [of the later statute] shall have any meaning at all.” In this case, the Court determined that the ESA did not repeal or alter the requirements of the CWA, nor did Congress intend it to. See Legal Alert 07-04 for a more detailed analysis of the decision.

The Court accepted the case in early January 2007 after EPA appealed a decision by the U.S. Court of Appeals for the Ninth Circuit, which held that EPA improperly delegated NPDES permitting authority to the State of Arizona because ESA requirements were not sufficiently considered. NACWA’s Board of Directors approved the Association’s participation in the case at its January 2007 meeting because of the adverse implications that improper extension of the ESA to CWA activities could have on NACWA member agencies. Oral arguments were held on April 17. The case is one of the Court’s most important environmental decisions of this term and represents a major victory for NACWA and its members.

 

Natural Resources Defense Council v. EPA
 NACWA is in the process of reviewing an extensive collection of documents produced by EPA during the discovery process in Natural Resourced Defense Council (NRDC) v. EPA. The case involves a legal challenge regarding EPA’s failure to establish new recreation water quality criteria as required by the Beaches Environmental Assessment and Costal Health Act (BEACH Act). The BEACH Act calls for EPA to assess potential human health risks from exposure to bacteria and other pathogens found in costal recreational waters, and to then publish resulting bacteria and pathogen indicators by October 2005. However, EPA missed this deadline and NRDC filed suit last summer against the Agency. The NACWA Board approved participation in the case in September 2006, and NACWA filed a Motion to Intervene in the case in December 2006 so that the Association could bring the clean water community’s voice to anticipated settlement discussions. NACWA was granted intervention in the case as a plaintiff in March, over the objections of NRDC.

Also in March, the court granted NRDC’s Motion for Summary Judgment on the Pleadings and ruled that EPA violated the BEACH Act by failing to publish the new criteria by October 2005. The focus of the case now is on how much time EPA will be given by the court to meet its BEACH Act obligations.

The documents produced by EPA in the discovery process will be used to help NACWA determine the Association’s position on how long EPA should be given to complete its obligations under the BEACH Act. Additionally, the documents will also guide NACWA in deciding whether to name an expert witness in the case. Initial settlement discussions have begun between EPA and NRDC, and both NACWA and the other intervenor, the County of Los Angeles (County) have asked to participate. The discovery process is expected to stretch into October, with the parties then exchanging Motions for Summary Judgment.

Additionally, the Beach Protection Act of 2007 has recently been introduced in the both the House and Senate to renew the BEACH Act, although this legislation is not expected to have an impact on the on-going litigation. NACWA will keep the membership updated of any developments in this case.

 

City of Salem, OH v. EPA (Amicus Brief)
NACWA and the Association of Ohio Municipal Wastewater Agencies (AOMWA) are still waiting for the City of Salem, OH (City) to initiate a challenge to EPA’s September 2005 approval of phosphorus TMDLs for several Ohio rivers. The City alleges that 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, in turn, are the source of new, more stringent phosphorus effluent limitations in wastewater NPDES permits. NACWA’s Board in July 2006 approved the Association working with AOMWA on an amicus curiae brief supporting the City, and NACWA will develop the brief with AOMWA at an appropriate time once the City has initiated the litigation.

 

U.S. v. Board of County Commissioners of Hamilton County, Ohio, No. 1:02-CV-00107 (8/23/05)
 The U.S. Court of Appeals for the Sixth Circuit has not yet released a decision in the case of U.S. v. Board of County Commissioners of Hamilton County, Ohio. The litigation involves NACWA member agency the Metropolitan Sewer District of Greater Cincinnati’s (MSDGC’s) appeal of a ruling by the U.S. District Court for the Southern District of Ohio that the Sierra Club was a “catalyst” to MSDGC entering a consent decree, and the award to Sierra Club of $1 million in attorneys’ fees under the CWA’s citizen suit provision (§505(d)). NACWA filed an amicus curiae brief in support of MSDGC before the Sixth Circuit on February 15, 2006, arguing 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 because Sierra Club not only opposed entry of the decrees but also was not a party to the decrees. Oral arguments in the case were held before the Sixth Circuit on September 15, 2006, and the parties to the case think the delay in releasing an opinion may be due to a split decision and a dissent. We will inform the membership as soon as a decision is announced.

 

 

Cities of Annandale and Maple Lake (Cities) NPDES/SDS Permit Issuance
 NACWA won a major legal victory on May 17 when the Minnesota Supreme Court ruled in the case of Cities of Annandale and Maple Lake (Cities) NPDES Permit Issuance that the Minnesota Pollution Control Agency (MPCA) may use an “offset” analysis when issuing an NPDES permit for a new wastewater treatment plant discharging into an impaired water body. (See Legal Alert 07-03 for more information.) The ruling overturns a 2005 decision of the Minnesota Court of Appeals, which held that MPCA could not issue an NPDES permit for the cities to discharge to a water body that does not meet water quality standards. MPCA had issued the permit based on a finding that reductions resulting from upgrades at another nearby POTW would have more than offset the new discharge. The lower court held that consideration of such offsets was improper. The case was appealed to the Minnesota Supreme Court, and NACWA filed a brief in December 2005 at the request of its Minnesota members which supported the state agency’s interpretation of the federal rule on permitting new discharges. The court’s ruling embraces NACWA’s reasoning and represents a significant victory for ensuring that states have the power to make NPDES permitting decisions that are equitable and environmentally sound.

Following the decision, the plaintiffs filed a motion to extend the time to ask for rehearing, based on the fact that one of the cases cited by the majority opinion is currently on appeal to the Ninth Circuit and is awaiting a decision. The other parties opposed such an extension, and the court denied the request. The time for filing a petition for rehearing has now passed, so the state court decision is final. It is possible the plaintiffs may still try to take the case to federal court, arguing that it raises issues of federal law, but such a move is not certain. We will keep the membership updated on any developments.

 

DC WASA Phase II Permit Appeal
 Member agency the District of Columbia Water and Sewer Authority (DCWASA) filed a petition for review on May 7 with the Environmental Appeals Board (EAB) over the new NPDES permit issued on April 5 for the Blue Plains Wastewater Treatment Plant. Among the issues raised by DCWASA in its petition is the decision of EPA Region III not to include in the permit a compliance schedule for implementation of DCWASA's long-term control plan (LTCP). NACWA and the Wet Weather Partnership (WWP) supported DC WASA in a 2005 appeal over an earlier permit that also lacked a compliance schedule, and are planning to support DCWASA in its appeal over the new permit as well due to the importance of compliance schedules for those agencies following LTCPs. The 2005 challenge is now moot as a result of the new appeals, and NACWA and the WWP plan to file a Motion to Intervene in the new petition for review in the coming weeks.

A number of environmental groups have also filed petitions for review of the new permit. The Chesapeake Bay Foundation filed a petition May 7 which, like DCWASA’s petition, challenges the permit for lacking a compliance schedule. The Sierra Club and the Friends of the Earth (FOE) also filed a joint petition on May 7 alleging, among other issues, that the new permit does not contain stringent enough water-quality based effluent limits, that Region III did not provide adequate time and opportunity to comment on the proposed permit language, and that the permit’s final language violates the antibacksliding provision of the CWA and EPA rules. DCWASA responded on May 29 by requesting an opportunity to reply to the Sierra Club and FOE petition, and the EAB granted this request on June 15. We will keep the membership informed of any developments.

 

City of Cincinnati, OH (Greater Cincinnati Water Works (GCWW)) v. Sanitation District No. 1, KY (SD No. 1)
NACWA member agency Sanitation District No. 1 of Northern Kentucky (SD No. 1) is expecting the issuance of a discharge permit for its new wastewater plant within the next few weeks. Once the permit is issued, SD No. 1 anticipates a challenge to the permit from the Greater Cincinnati Water Works (GCWW), starting the next chapter in an ongoing litigation over the new wastewater treatment facility. The case, which is one of the nation’s first truly cross-cutting clean water/drinking water disputes, began in 2004 with an appeal by GCWW of a permit issued to SD No. 1 for a new regional wastewater treatment facility. GCWW expressed concern that the facility’s outfall would be a source of problematic pollutants such as endocrine disrupters, cryptosporidium, giardia, and viruses at GCWW’s downstream drinking water plant. Due to unexpected difficulties affecting the cost, permitting, and environmental impact of the effluent pipeline and outfall structure, SD No. 1 decided to move the discharge location, thus making the original discharge permit moot. The new discharge location also happened to be further away from GCWW’s water intake, and there was some thought that this might avert any future legal challenges. However, GCWW has indicated that even with the change in the outfall location it will still appeal any revised permit for SD No. 1’s discharge site, and more litigation is expected when the permit is issued. NACWA supported SD No. 1 during the appeal of its first permit, and plans to continue its support during the expected litigation involving the forthcoming permit.

 

Our Children’s Earth Foundation v. EPA
No decision has been released yet by the U.S. Court of Appeals for the Ninth Circuit in Our Children’s Earth Foundation (OCEF) v. Environmental Protection Agency. Oral arguments were held on February 13, 2007 in the case, which involves a challenge by OCEF to EPA’s Effluent Limitation Guidelines (ELG) program. NACWA entered the case as an intervenor and urged the appeals court in November 2005 to affirm the finding of the trial court that EPA is implementing the ELG program properly and consistent with Congress’ intent. At oral arguments, the Association reiterated this position and emphasized to the court the 30 years of case law and CWA legislative history, which support EPA’s recent ELG program actions. The three judge panel examined the language of the CWA and whether EPA's duty to "review" ELGs every year includes a non-discretionary duty to evaluate the details of each ELG. One judge seemed convinced that nothing in the CWA mandates this type of review; and two judges seemed to believe EPA has significant discretion in how it chooses to carry out its mandatory “review.” The panel focused on the CWA’s language that EPA shall "review, and revise [ELGs] if necessary." We will inform the membership of the court’s decision when it is available.

 

City of Healdsburg v. Northern California River Watch
A panel of the U.S. Court of Appeals for the Ninth Circuit is still considering whether to grant a rehearing in City of Healdsburg (Healdsburg) v. Northern California River Watch, a case involving CWA jurisdiction over a wastewater treatment percolation pond. A petition to the entire Ninth Circuit to rehear the case en banc has also not been ruled on. The petitions come as a result of the court’s decision on August 10, 2006 that Basalt Pond (NACWA member agency the City of 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." 457 F.3d 1023 (2006). Based on this jurisdictional finding, the court held that the City must obtain an NPDES permit to discharge to the percolation pond. The Healdsburg decision is critically important because it was one of the first appellate court opinions to interpret the U.S. Supreme Court’s June 19, 2006 decision in Rapanos et ux., et al. v. United States and Carabell et al. v. U.S. Army Corps of Engineers et al. (Rapanos).

NACWA, together with the California Association of Sanitation Agencies (CASA) and the Association of California Water Agencies (ACWA), filed a letter on September 8, 2006 with the appeals court requesting a rehearing. The NACWA letter argues that the Ninth Circuit incorrectly applied Justice Kennedy’s “significant nexus” test from Rapanos and reached a conclusion that “would not be endorsed by either the four plurality or the four dissenting judges.” Accordingly, NACWA and its partners argue that the Ninth Circuit must rehear the case and re-examine the appropriate test to be used to determine CWA jurisdiction under recent Supreme Court case law. The letter filed by NACWA, CASA, and ACWA follows a request for rehearing filed on August 23, 2006 by the City of Healdsburg, as well as a Motion for Clarification filed by the federal government on August 31, 2006. A number of the parties have also filed supplemental briefs on a number of related, recently decided cases. However, the Ninth Circuit has yet to make any rulings, and we will inform the membership if there are any developments.

 

City of Cincinnati v. U.S.
 The City of Cincinnati is currently in negotiations with the federal government over disputed stormwater fees, raising the possibility that the case could end in settlement. This follows a ruling by an Ohio federal court on March 27, 2007 that a U.S. government facility within the City’s service area is not exempt from paying stormwater fees, endorsing the position advocated by NACWA. The case of City of Cincinnati (City) v. U.S. involves a Department of Health and Human Services (HHS) facility within the City’s service area that has refused to pay over $100,000 in past-due invoices for stormwater services. The case arose when the HHS facility alleged that the stormwater service charges are an impermissible “tax” on the federal government and thus refused payment. NACWA, along with the National League of Cities (NLC), the National Association of Flood and Stormwater Management Agencies (NAFSMA), and the American Public Works Association (APWA) filed an amicus curiae brief in the Fall of 2004 arguing that CWA Section 313 gives local governments the authority to collect fees from the federal government to cover the cost of stormwater services at its facilities.

The court agreed with this position in its March ruling, and noted that “the City’s stormwater system charge falls squarely within the waiver of sovereign immunity,” and thus the HHS facility is not exempt from paying the charges. Additionally, the court granted permission to the City to amend its complaint and aggregate its claims in order to achieve the full recovery of past-due bills. A status conference was held on June 19, at which time the parties updated the court on the progress of their negotiations and were granted until July 18 to continue discussions. NACWA will report on any developments.

 

DC MS4 Permit Appeal
Negotiations between the Friends of the Earth (FOE), Defenders of Wildlife (Defenders), EPA, and the District of Columbia (District) involving the March 2006 Final Modification to the District’s municipal separate storm sewer system (MS4) permit continue, with the parties attempting to reach a settlement. FOE and Defenders filed petitions for review with EPA’s Environmental Appeals Board (EAB) over the permit, but all parties have continually agreed to extend EPA’s time to respond to allow for settlement discussions. The parties attended a status conference on June 8 where they discussed their progress in negotiations and the possibility that they might enter into formal mediation. As a result, the EAB has extended EPA’s time to respond the petitions until September 14, 2007.

In the petitions, 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 petitioners 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) have all been involved in this case to protect the MEP standard for MS4 discharges.

 

Completed Cases

Catskill Mountains Chapter of Trout Unlimited, Inc. (TU) v. City of New York (City)
The U.S. Supreme Court announced February 26 that it would not grant certiorari to review an appeals court decision, City of New York v. Catskill Mountains Chapter of Trout Unlimited, dealing with interbasin water transfers. NACWA filed a brief with the Court January 26, supporting a request by member agency the New York City Department of Environmental Protection (NYCDEP) for review of the decision from the U.S. Court of Appeals for the Second Circuit. The Second Circuit held that NYCDEP must obtain a NPDES permit for transfers of natural, untreated water between two of its reservoirs. The Supreme Court’s refusal to hear the case puts an even greater onus on EPA to clarify the appropriateness of NPDES permits for water transfers in its forthcoming water transfer rule. The rule is expected to clarify that transfers of untreated water like those carried out by NYCDEP are not subject to the NPDES permitting program. NACWA will continue to work with NYCDEP and other members on this issue and will circulate EPA’s transfer rule for review and comment when it is released.

 

Sierra Club v. EPA
NACWA has learned through communication with EPA that the Agency has decided not to reopen its final regulation for other solid waste incineration units (OSWI) under the Clean Air Act (CAA) § 129 to cover sewage sludge incinerators (SSIs). EPA had announced in June 2006 (71 Fed. Reg. 36,726) that it was considering revising the final OSWI rule to include coverage of SSIs. NACWA submitted comments in August 2006 strongly opposing this approach and arguing that SSIs could not be regulated as OSWI under § 129 of the CAA because EPA had already determined they would be regulated as separate area sources under CAA § 112. See Fed. Reg. 23430, 23460 (April 24, 2000). EPA’s decision not to reopen OSWI, which was published in the Federal Register on January 22, 2007, represents a significant victory for NACAW’s advocacy efforts on SSIs.

EPA will now proceed with developing separate area source standards for SSIs. Although a proposed rule for these standards is not expected until at least 2008, NACWA plans to work closely with EPA on the development of the rule. EPA’s actions are in part a result of the August 2, 2006 opinion of the U.S. District Court for the District of Columbia in Sierra Club v. EPA, a case concerning EPA’s overdue air toxics regulations, including those for urban SSIs under the CAA § 112(k). The court directed in its ruling that EPA promulgate dozens of overdue CAA air toxics regulations between 2006 and 2009.

 

Friends of the Earth v. EPA
NACWA learned January 16 that the U.S. Supreme Court declined review of Friends of the Earth v. EPA, an April 2006 decision by the U.S. Court of Appeals for the District of Columbia that all total maximum daily loads (TMDLs) for the Anacostia River must be expressed in daily terms, not in monthly or seasonal averages. As a result of the Supreme Court’s action, the D.C. Circuit ruling will stand, and EPA is directed to develop new TMDLs for the Anacostia River in accordance with the appeals court decision by June 2008. A draft TMDL for total suspended solids (TSS) was released on April 6, and NACWA is working with DCWASA to provide comments.

NACWA filed a joint brief with the Wet Weather Partnership (WWP) in August 2006 supporting the request by member agency DCWASA for high court review of the D.C. Circuit ruling. NACWA is disappointed with the Court’s decision not to review the case; however, the Association is actively engaged with EPA in developing technical guidance to help implement the TMDL change on a pollutant-specific basis. EPA released a final memorandum in November 2006 providing guidance on how to deal with the court’s ruling, which NACWA reviewed. NACWA also provided substantive comments on a July 2006 draft of that guidance indicating it was inadequate. Additionally, EPA is developing a “fact sheet” and other technical guidance to help convert non-daily load limits to daily limits, and NACWA has been reviewing these documents as well.

Furthermore, NACWA will be working on a technical study to determine the appropriateness of creating true “daily” TMDLs for certain pollutants, including nutrients, mercury, and bacteria. A draft outline of this study will be shared with the Water Quality Committee and the Legal Affairs Committee at the May meetings. NACWA plans to use this technical study to further inform its discussion with EPA over the development of future TMDLs.

 

Chesapeake Bay Foundation (CBF) v. Town of Onancock (Onancock)
 The Circuit Court for the City of Richmond, Virginia has refused to rule on a request by the Chesapeake Bay Foundation (CBF) to reverse the favorable November 3, 2005 decision issued by the court in CBF v. Town of Onancock (Onancock). CBF filed its request in April 2006, but the court has taken no action on it, thus sustaining a key victory for NACWA and the Virginia Association of Municipal Wastewater Agencies (VAMWA). In its decision, the court agreed with the position expressed by NACWA and 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.

 

Pennsylvania Municipal Authorities Association (PMAA) v. EPA
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 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.

 

Cities of Burbank & Los Angeles v. State Water Resources Control Board
On July 1, the California Supreme Court will respond to petitions seeking a rehearing of its April 4 decision in Cities of Burbank & Los Angeles (Cities) v. State Water Resources Control Board (Water Board). In the case, the Cities appealed their National Pollutant Discharge Elimination System (NPDES) permit limits for toxicity, alleging that the Water Board failed to consider economic factors as required by California law when setting the permit limits. The Water Board defended the permits, asserting that because the permit limits were implementing a federal toxicity standard, cost considerations are precluded under the Clean Water Act (CWA). NACWA filed a May 2004 amicus brief to support the Cities, arguing that states should adopt clear “translators” for converting narrative water quality standards (WQS) into numeric permit limits, and advocating the use of compliance schedules to phase in stringent permit limits.

In its April ruling, the Court clarified that the Water Board may consider economic factors when imposing permit limits more stringent than federal WQS, but may not consider economic factors when setting permit limits to meet federal WQS. The Court remanded the case to the lower court to determine whether the permit limits were “more stringent” than federal WQS.

Both the Cities and the Water Board are seeking rehearing of the Court’s decision. The Cities assert that the Court overlooked the fact that California’s narrative toxicity standard was improperly adopted and thus cannot be enforced in permits, and that a remand to determine if the permit limits are “more stringent” than federal WQS will be problematic because the narrative WQS were not approved by EPA when the permits were adopted in 1998. The Water Board asserts that the decision’s broad discussion of how costs are to be considered in permitting will lead to the reopening of hundreds of water permits for cost reviews. On June 21, NACWA sent a letter to the Court supporting the Cities’ request for rehearing. We will report on new developments in this case in the coming weeks.

 

MMSD v. Friends of Milwaukee's Rivers
 On February 2, NACWA filed 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 Milwaukee Metropolitan Sewerage District (MMSD) v. Friends of Milwaukee’s Rivers, MMSD has asked the High Court to accept for review a September 2004 decision of the U.S. Court of Appeals for the Seventh Circuit. The Seventh Circuit 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. The CSO Partnership (CSOP) also filed an amicus brief in the case. The High Court is expected to review the request at a conference scheduled for March 4.

 

Edison Electric Institute et al. v. EPA
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. NACWA and other members of the municipal coalition will not participate in the rehearing in Edison Electric Institute v. EPA. Rather, NACWA 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.

 

Missouri Coalition for the Environment v. EPA
 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. EPA, NACWA and the Urban Areas Coalition (a group of Missouri NACWA 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 NACWA 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).

 

American Canoe Association v. WASA
 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. NACWA, 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.

 

Environmental Defense Center Inc. v. EPA
The U.S. Supreme Court has extended until May 7 the deadline for the U.S. Government to respond to the petition filed by the Texas Cities Coalition on Stormwater (Cities) seeking U.S. Supreme Court review of U.S. Court of Appeals for the Ninth Circuit’s September 2003 decision on EPA’s CWA Phase II municipal separate storm sewer (MS4) regulation (Phase II rule). Environmental Defense Center Inc. (EDC) v. EPA, 344 F.3d 832 (9th Cir. 2003); Texas Cities Coalition on Stormwater v. EPA, No. 00-70822 (U.S. Feb. 5, 2004). The Cities assert that the Phase II rule’s general permit program violates the 10th Amendment to the U.S. Constitution because it induces “local governments to yield control of their sovereign regulatory powers” in order to avoid the onerous and expensive individual permit option. The Supreme Court may decline to accept the case, given that both the Fifth and Ninth Circuits have rejected 10th Amendment arguments concerning Phase II.

As detailed in Legal Alert 03-8, the EDC case is important to NACWA members because the decision clarifies that removing pollutants to the maximum extent practicable (MEP) using best management practices (BMPs) is the only federal standard with which MS4 NPDES permits must comply under CWA § 402(p)(3)(B)(iii). MS4 permits are not required to contain numeric effluent limitations to meet water quality standards (WQS). NACWA’s March 2003 amicus brief was instrumental in the EDC court’s analysis. It is important to remember, however, that some states, such as New York and California, are including WQS compliance requirements in MS4 permits using their authority to be more stringent than federal law.

In addition to confirming the MEP standard for MS4s, the EDC court identified flaws in other parts of the Phase II rule and vacated those rule provisions – taking them off the books. In particular, the court found that the rule lacks a clear process for public review, comment, and if requested, hearings, on city Notices of Intent (NOIs) (as the functional equivalent of NPDES permits), nor does it include permitting authority review of the BMPs cities select. On April 14, EPA released a memorandum addressing how permitting authorities should proceed in the wake of the vacature. EPA states that prior to authorizing the stormwater discharge, permitting authorities should explain how NOIs will be made available for public review, and the time period for public comment (at least 30 days), and specify in objective terms what Phase II cities must show to meet the MEP standard. While formal approval of NOIs is unnecessary, EPA urges permitting authorities to deny cities permission to discharge stormwater if they find a proposed stormwater management plan (SWMP) does not meet MEP. In such a case, a city would submit a revised SWMP, but would be exposed to citizen suits in the interim for discharging without an MS4 permit – an inevitable circumstance in wet weather. Members can view the April 14 memorandum on the Litigation Tracker under the EDC case heading.

On June 7, the U.S. Supreme Court declined to accept the Texas Cities Coalition on Stormwater’s request for review of the U.S. Court of Appeals for the Ninth Circuit’s EDC v. EPA decision.

 

South Florida Water Management District v. Miccosukee Indian Tribe, et al.
On March 23, the U.S. Supreme Court (Court) ruled in South Florida Water Management District (SFWMD) v. Miccouskee Tribe of Indians (Miccosukee), No. 02-626, a case reviewing whether NPDES permits should be issued to operators of dams, levees, and similar flood control and water transfer structures to control their water quality impacts. NACWA’s amicus brief in the case, filed with member agency the New York City Department of Environmental Protection (NYCDEP) and other municipal groups, emphasized the complexity of adding thousands of new structures to the already backlogged NPDES permit program, the need to preserve local government autonomy over water management, and that other Clean Water Act (CWA) programs are designed to address the water quality impacts of transfer activities.

In vacating and remanding the SFWMD decision to the lower courts for factual clarification, the Court’s analysis suggests that pumping or moving water within a single water body generally will not require a permit, while pumping or moving water between separate water bodies will require a permit. The Court’s discussion reveals the Justices’ underlying suspicion that the Everglades pumping at issue in SFWMD occurs within a single, albeit human altered, water body.

As discussed in Legal Alert 04-4, the SFWMD decision does not immediately impact any sources, although it further empowers any state that wants to begin permitting water transfer structures. The conclusion of SFWMD before the Supreme Court also reactivates NYCDEP’s water transfer case. Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F.3d 481 (2d Cir. 2001) (New York). The Second Circuit held in 2001 that NYCDEP needs an NPDES permit to control the water quality impacts of the discharge from a City tunnel that transfers drinking water supply between reservoirs. Like SFWMD, the outcome of further proceedings before the Second Circuit in New York will be of importance to NACWA members that transfer water for a variety of purposes. On May 4, NACWA and the amici associations that participated in SFWMD, including the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), and the National Association of Flood and Stormwater Management Agencies (NAFSMA) met with NYCDEP attorneys to discuss amicus participation in New York. NACWA will report soon on additional developments in this arena.

 

PMAA v. EPA (District Court)
On June 29, EPA filed a status report with the U.S. Court of Appeals for the District of Columbia Circuit in the appeal of the case challenging EPA Headquarters’ and Region 3, 4, and 6’s inconsistent actions on blending and sanitary sewer overflows (SSOs). In PMAA v. EPA, EPA reports that it is reviewing comments filed on the November 2003 blending policy and that review will extend beyond August 2004.

Under the court order staying the case, motions governing the future of the litigation are due July 30. It is likely that the parties will seek a further stay of activity in the case to allow EPA to complete comment review and to make a final decision on the blending policy. NACWA has sought to intervene in the case, however, the court has deferred action on our motion during the stay.

 

Gearhart v. EPA
On December 31, 2003, EPA met the settlement deadline of January 2004 to publish: 1) its plan to respond to the July 2002 National Research Council recommendations on risks from toxicants and pathogens in land-applied biosolids, and 2) the final results of a CWA § 405(d)(2)(C) review to identify additional pollutants in biosolids that may warrant regulation. EPA's action was governed by an April 1, 2002 consent decree and settlement between NACWA, the Natural Resources Defense Council (NRDC), and citizen plaintiffs in a thirteen-year-old lawsuit over EPA’s Clean Water Act biosolids regulations. Gearhart v. EPA, Civ. No. 89-6266-HO (D. Or.). In its action, EPA identifies 14 near-term biosolids projects, and 15 chemicals targeted for further review based on a conservative screening process. EPA will conduct a refined risk assessment to determine whether amendments to 40 CFR Part 503 are needed to regulate any of the evaluated pollutants.

EPA also took final action in the Round Two rulemaking for dioxin and dioxin-like compounds in land-applied biosolids on October 17, 2003. As detailed in Regulatory Alert 03-11, EPA found that neither numerical limitations nor requirements for management practices are currently needed to protect human health or the environment from dioxins in land-applied biosolids. EPA’s final decision was published in the October 24, 2003 Federal Register (68 Fed. Reg. 61084).

 

Ohio Valley Environmental Coalition, et al., v. EPA
NACWA and its municipal coalition decided that an appeal of the court’s August 29, 2003 decision in this case concerning citizen challenges to EPA’s approval of West Virginia’s antidegradation implementation procedures would not be fruitful. Ohio Valley Envt’l Coalition v. EPA, 279 F. Supp.2d 732 (S.D.W.Va. 2003). Although EPA filed a protective appeal in the U.S. Court of Appeals for the Fourth Circuit to be situated to respond to any activist appeals, when the activist appeals did not materialize, EPA voluntarily dismissed the case. The district court decision now stands as the first comprehensive antidegradation precedent in federal court, and should be helpful to POTWs in the future. NACWA’s West Virginia members are working at the state legislative and regulatory levels to address the flaws in their antidegradation implementation procedures identified by the court. A detailed analysis of the court’s decision was distributed via Legal Alert 03-6.

 

American Farm Bureau Federation v. EPA
On November 18, 2003, the D.C. Circuit Court dismissed the case over the ill-fated July 2000 TMDL rule as moot based on the fact that EPA withdraw the rule from the federal books before its effective date. American Farm Bureau Federation v. EPA, No. 00-1320 (D.C. Cir. 2000). While NACWA has continued to urge EPA to propose its “watershed rule” to develop new ground rules for the TMDL program, little significant activity is expected until after the November 2004 elections. Accordingly, the TMDL program will be governed by EPA’s 1985/1992 regulations for the foreseeable future.

 

Pronsolino v. Nastri
On June 16, the U. S. Supreme Court granted NACWA members a key victory when it denied any further review of the U.S. Court of Appeals for the Ninth Circuit’s decision in Pronsolino v. Nastri, 02-1186 (U.S. 2003); 291 F.3d 1123 (9th Cir. 2002). NACWA filed a brief with the High Court opposing certiorari on May 16. The Pronsolino decision holds that impaired waters should be listed and subject to total maximum daily loads (TMDLs) under CWA § 303(d), whether impaired by point sources, nonpoint sources, or a combination of both. NACWA participated in the case at every stage to protect its member agencies from nonpoint source efforts to remove themselves from the scope of the important TMDL program.

 

EarthJustice v. EPA
NACWA continues to track petitions seeking numeric effluent limits in urban storm water NPDES permits. These efforts continue despite the Ninth Circuit’s confirmation in 1999’s Defenders of Wildlife v. Browner that Congress did not intend for municipal storm sewer discharges to comply strictly with state water quality standards (WQS), and that municipalities should use best management practices (BMPs) to reduce storm water pollutants to the maximum extent practicable (MEP).

In 2001, NACWA’s Board of Directors authorized the Association to file an amicus brief with other wastewater and storm water associations in a case before EPA’s Environmental Appeals Board (EAB) involving the District of Columbia’s storm water permit. In re: Government of the District of Columbia Municipal Separate Storm Sewer System, NPDES Appeal Nos. 00-14 and 01-09. In the case, environmental groups are challenging EPA Region III’s issuance of the District’s permit because they allege the permit’s BMPs will not ensure compliance with WQS or meet the MEP standard.

On February 20, the EAB issued an Order remanding the permit to Region III for further consideration. The Order contains some troubling statements suggesting that storm water discharge controls should ensure WQS compliance. The Order avoids the favorable Defenders precedent by noting that the Region did not rely on Defenders to issue the District’s permit. The Order’s discussion of the MEP approach is more consistent with Defenders, however, finding that the “key question” under CWA § 402(p)(3)(B) is what is “practicable.” Details of the Order are in Legal Alert 02-5, and case documents are on the Member Pipeline at http://www.nacwa.org/private/littrack.

Under EAB rules, interested parties can file an amicus brief only after the EAB grants review of an appeal. The February remand to the Region delays NACWA’s opportunity to participate as an amicus. If the permit is not appealed further after the remand, such an opportunity may be fully foreclosed. NACWA will be evaluating other strategies to prevent the establishment of unfavorable storm water legal precedent. NACWA will keep the membership apprised of our deliberations in this regard.

 

Piney Run v. Carroll County
On May 20, 2002, the U.S. Supreme Court declined to review this Fourth Circuit victory for publicly owned treatment works (POTWs) on the scope of the Clean Water Act (CWA) permit shield. The decision provides critical confirmation that National Pollutant Discharge Elimination System (NPDES) permits offer strong protection from enforcement for the discharge of pollutants listed in an NPDES permit, as well as pollutants not listed but whose discharge is reasonably contemplated by the permitting authority at the time a permit is issued. Specifically, in Piney Run, the court found that the CWA's permit shield protected Carroll County, Maryland (County) from liability for discharging heat, which was not specifically listed in the County's NPDES permit, but where the County's effluent temperature was disclosed to the Maryland Department of the Environment (Maryland) in the permitting process. NACWA and the Water Environment Federation filed a joint amicus brief in the case in August 2000, successfully arguing that the County should not be liable for unlisted pollutants under the CWA's permit shield.

 

City of Anderson v. South Carolina DHEC
On February 4, 2002, the South Carolina Court of Common Pleas issued its opinion in a case involving the City of Anderson, South Carolina’s (City’s) challenge to the state Department of Health and Environmental Control’s (DHEC’s) adoption of a Trophic State Index (TSI) without public notice or comment. DHEC used the TSI to determine whether waterbodies were impaired by nutrients under South Carolina’s narrative water quality standard for aquatic life use, and then to place waters on the state’s Clean Water Act (CWA) §303(d) list. In April 2001, NACWA filed an amicus brief supporting the City’s challenge to the TSI. NACWA’s brief argued that notice and comment procedures for the TSI were essential because listing a water as impaired under §303(d) can result in more stringent effluent limits in individual National Permit Discharge Elimination System (NPDES) permits. Therefore, the participation of permittees like publicly owned treatment works (POTWs) in the development of tools such as the TSI is critical.

 

Bishop and Jarrett v. The Water Works and Sanitary Sewer Board of the City of Montgomery
Under the citizen suit provisions of the Clean Water Act, the plaintiffs in this case sued the City of Montgomery in the U.S. District Court for the City's alleged failure to report "each and every" sampling result in its monthly discharge monitoring reports (DMRs). The City of Montgomery has responded by asking the court as a basic matter of law to rule in its favor based on the clear requirements in its NPDES permit to report only summaries of their monitoring results in its DMR. Therefore, although the City is required to keep records of its sampling results for three years, there is no permit requirement that directs the City to report all monitoring data outside of the summaries it already provides. NACWA's participation as amicus curiae demonstrated to the court the importance of protecting the integrity of existing NPDES permit conditions for all POTWs. This case settled in February 2001 and there will be no court decisions in the matter.

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