Member Pipeline - Legal - Alert (Leg 07-05)
| To: | Members & Affiliates, Legal Affairs Committee |
| From: | National Office |
| Date: | July 10, 2007 |
| Subject: | LITIGATION REPORT |
| Reference: | Legal Alert 07-05 |
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.
Legal Affairs Committee to Meet at Summer
Conference in Cleveland
The Legal Affairs Committee will meet as part of NACWA’s 2007
Summer Conference in Cleveland, OH on Friday, July 20 at 7:30 am. The
meeting will feature an update on current litigation and Targeted Action Fund (TAF)
projects, a discussion of the recently introduced Clean Water Restoration Act
of 2007 (H.R. 2421) and Clean Water Act (CWA) jurisdiction, and a roundtable
discussion of Legal Hot Topics. We hope you can join us!
Late Breaking Legal Issues Call
NACWA completed a successful Late Breaking Legal Issues call
on June 13, focusing on recent legislation and guidance dealing with CWA
jurisdiction. The call featured a roundtable discussion on the Clean Water
Restoration Act of 2007 (H.R. 2421), a recently introduced bill which would
change the CWA definition of “waters of the United States.” Roundtable
participants included both supporters and opponents of the bill, and engaged in
a lively discussion about the potential impacts of the legislation on clean
water agencies. Also discussed on the call was the new joint guidance on CWA
wetlands jurisdiction issued by the U.S. Environmental Protection Agency (EPA)
and the U.S. Army Corps of Engineers. The guidance was issued to help clarify
CWA jurisdiction following a number of recent U.S. Supreme Court decisions.
Handouts from the call are available on the Late Breaking Legal Issues
section on the legal page of the NACWA Member Pipeline.
The dates for future 2007 calls are September 12 and December 12. All calls are held from 2:00 – 3:00 pm eastern. Dial-in information for all 2007 calls can be found on the legal section of NACWA’s Member Pipeline.
Palm Springs, CA to Host 2007 Law Seminar
The 2007 Developments in Clean Water Law: A Seminar for Public
Agency Attorneys & Managers (Seminar) will be held November 7-9, 2007 in
sunny Palm Springs, CA at the Westin Mission Hills. A planning committee for the
Seminar will be meeting at the Summer Conference in Cleveland, and a
preliminary agenda will be available in the coming weeks. Mark your calendars
now to join your clean water law colleagues at this annual event. Any ideas for
the Seminar can be forwarded to Alexandra Dunn, NACWA’s General Counsel, at
adunn@nacwa.org.
First Draft of New Security Publication
Completed
Edits to the first draft of NACWA’s new legal security publication
are now complete, and work is well underway on the second draft. The new
publication will provide wastewater utilities, water utilities, and public works
directors with a description of key environmental and related legal issues
relevant in times of heightened security, and will serve as both a practical
manual and guidebook for security related issues. The project is a joint effort
between NACWA, the Association of Metropolitan Water Agencies (AMWA), the
American Public Works Association (APWA), and the Water Environment Federation (WEF).
The publication will be available for distribution at the Law Seminar in
November.
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
Supreme Court Embraces NACWA View in Clean
Water/Endangered Species Case
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.
NACWA Wins Significant Victory in Minnesota
Pre-TMDL Permitting Case
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.
Discovery Process Ongoing in BEACH Act Case
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.
Clean Water/Drinking Water Case Set to Resume
With Issuance of New Permit
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.
New Petitions for Review Lodged Over Recent
Blue Plains NPDES Permit
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.
Parties Discuss Settlement in Stormwater Fee
Case
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.
Suitability Analysis Progresses in Wake of
TMDL Case
NACWA continues work on a suitability analysis to determine the
appropriateness of creating true “daily” TMDLs for certain pollutants, including
nutrients, mercury, and bacteria. This study follows the decision of the U.S.
Supreme Court in January not to review Friends of the Earth v. EPA, an
April 2006 ruling 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 decision will stand, and EPA has been directed
to develop new TMDLs for the Anacostia River in accordance with the appeals
court decision by June 2008. A second draft of the study will be presented to
the Water Quality and Legal Affairs committees at the July meeting. Once
finalized, NACWA will use the suitability analysis to further inform its
discussion with EPA over the development of future TMDLs.
Decision Awaited From Ninth Circuit in
Effluent Limitation Guideline Case
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.
Appeal of District of Columbia MS4 Permit on
Hold Pending Mediation
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.
No Ruling Yet in Clean Water Act Attorneys Fee
Award Case
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.
Ninth Circuit Still Considering Request for
Rehearing in CWA Jurisdiction Case
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.
NACWA Eager to Engage in Ohio Phosphorus TMDL
Case
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.
Interbasin Water Transfer Rule Anticipated
NACWA continues to await the release by EPA of a water transfer rule
following the decision of the U.S. Supreme Court in February 26 not 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 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 forthcoming 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. The Supreme Court’s
refusal to hear the case means that NACWA’s involvement in this litigation is
now ended, and this will be the final report included in the Litigation
Update.