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Fall 2018 Legal Update
The National Association of Clean Water Agencies (NACWA) is pleased to present the Fall 2018 Legal Update, which summarizes current legal initiatives and developments.
More detailed information on the Association’s active cases is available on the Litigation Tracking web page.
Any questions regarding this Update or the Association’s legal advocacy efforts can be directed to Amanda Waters, NACWA’s General Counsel (202/530-2758), or Erica Spitzig, Deputy General Counsel (202/533-1813).
Legal Advocacy Insights from the General Counsel
To show my appreciation to our members this holiday season, I present you with a very rare gift from an attorney – brevity. This quarterly update is as short as an elf and sweet as a rugelach. If you are left wanting after reading it, never fear, for we shall be much more loquacious in the new year. Happy Holidays!
NACWA Defending Public Utility Interests Through Litigation
Clean Water Act Point Source Liability for Discharges via Groundwater
Does the release of a pollutant that reaches groundwater and thereafter enters a Clean Water Act (CWA) jurisdictional surface water constitute a “point source” discharge triggering the requirement for a CWA National Pollutant Discharge Elimination System (NPDES) permit? The US Supreme Court is being asked to resolve this controversial question. On August 27, 2018, NACWA Member Agency Maui County Department of Environmental Management filed a petition for writ of certiorari with the US Supreme Court. The County is asking the Court to review a February 2018 Ninth Circuit decision that adopted a new indirect discharge theory to hold Maui County liable under the CWA because (1) the County discharged pollutants from a point source (i.e., its underground injection wells); (2) the pollutants are fairly traceable from the point source to a navigable water, such that the discharge is the functional equivalent of a discharge into the navigable water; and (3) the pollutant levels reaching navigable water are more than de minimis.
NACWA filed a brief on September 28, along with a coalition representing the clean water sector, supporting Maui’s petition. NACWA’s brief argues that the Ninth Circuit’s decision is at odds with the statute’s text, structure, and history; that the decision has the potential to substantially increase the number and type of sources subject to the NPDES requirement; and that the decision is at odds with decisions of other circuits on the issue such that whether or not an NPDES permit is required depends on the location of the discharge rather than the text of the statute. The brief urges the Court to review the case in light of the regulatory uncertainty inherent in the Ninth Circuit’s “fairly traceable” standard, and the need for municipal utilities to prioritize projects with the greatest environmental benefit.
Maximum Extent Practicable Standard Litigation
Mediation is still ongoing in the challenge to the NPDES permits for small municipal separate storm sewer systems (MS4s) in New Hampshire and Massachusetts. The permits require MS4s to comply with water quality standards, in addition to the requirement to reduce the discharge of pollutants to the maximum extent practicable (MEP). NACWA has partnered with the Massachusetts Coalition for Water Resources Stewardship (MCWRS), which is a party to litigation, to provide a strong defense of the MEP standard. The Association views this appeal as the most important MS4 litigation to date. The outcome of this case is likely to set an especially important precedent defining the scope of EPA’s regulatory authority relative to local governments and their MS4s, because the requirements in question were established by EPA itself. EPA would gain much broader authority and latitude to impose expensive stormwater requirements and TMDL implementation programs—and dictate implementation schedules—for MS4s throughout the nation, apparently without regard to the practicability of such requirements.
Read more about the litigation and the permits.
Enforcement Development Affecting New and Existing Consent Decrees
On November 7, in one of his last official actions, Former Attorney General Jeff Sessions signed a memorandum that limits federal enforcement against state and local governments. While the primary objective of the memo is to limit the ability of the US Department of Justice (DOJ) to enter into consent decrees with police departments to address alleged abuses and civil rights violations, it clearly applies to environmental enforcement. NACWA encourages members negotiating or implementing decrees to share these developments with their counsel.
NACWA has long advocated for many of the policies outlined in the memo. Last year, NACWA and several utility leaders met with Jeffrey Wood, currently the Principal Deputy Assistant Attorney General, Environment and Natural Resources Division (ENRD), to discuss these issues (see NACWA letter and Mr. Wood’s response). Mr. Wood also attended NACWA’s 2017 Enforcement Workshop last November to deliver the luncheon address.
On November 7, NACWA sent a letter to Jeffrey Bossert Clark, the recently confirmed Assistant Attorney General of ENRD and will work to schedule a meeting with him and several of NACWA’s utility leaders. In addition, in early October NACWA met with Assistant Administrator Susan Bodine, head of EPA’s Office of Enforcement and Compliance Assurance. Read more.
Next Legal Affairs Committee Meeting
The Legal Affairs Committee will meet during the NACWA 2019 Winter Conference, February 5 – 8 in Albuquerque, New Mexico. More details about the meeting, including the specific date and time, will be available soon on NACWA’s website. If you are not a Legal Affairs Committee member, join today to begin engaging with your peers on the latest legal issues affecting the clean water sector.
Next Hot Topics in Clean Water Law Webinar
NACWA will host the next installment of its Hot Topics in Clean Water Law webinars on March 6, 2019, from 2:00-3:30 PM ET.
Further details and registration will be available soon on NACWA’s website. Please contact Erica Spitzig or Amanda Waters with suggestions for topics or speakers for future Hot Topics in Clean Water Law webinars.
Highlights from NACWA’s 2018 National Clean Water Law & Enforcement Seminar
This year, for the first time, NACWA combined its two popular legal conferences – the National Clean Water Law Seminar and National Water Enforcement Workshop, into a single event: the National Clean Water Law & Enforcement Seminar, held November 14-16 in sunny San Diego, CA.
As in years past, the Seminar featured presentations by expert clean water attorneys, utility leaders, and federal/state regulators on critical Clean Water Act (CWA) issues, but the combination of the two events allowed for discussion of a broad range of both legal and enforcement developments in a single setting. Panels covered issues including interactions between the Safe Drinking Water Act and CWA, the challenges utilities face in attempting to deal with human health criteria for toxins, an insider view of the development of the CSO Policy, and common legal issues involving private landowners.
The Seminar featured a keynote presentation, Water Law in the Supreme Court in the Wake of Justice Kennedy’s Retirement, from Robert Percival, the Robert F. Stanton Professor of Law and Director of the Environmental Law Program at the University of Maryland Carey School of Law. Professor Percival shared insights into shifts in the makeup of the US Supreme Court following the appointment of Justice Neil Gorsuch in 2017 and Justice Brett Kavanaugh in October, and the likely impact of these appointments on clean water law.
Another highlight included the Top CWA Enforcement Developments of the Year panel, in which the panelists discussed the Trump Administration’s approach to enforcement, both at EPA and in the US Department of Justice. Panelists discussed how recent memos and guidance from EPA and DOJ are being implemented in practice around the country to varying degrees of success, depending on the particular EPA region and state.
The final day of the Seminar included a discussion of how climate change is and will impact utilities, both in terms of resiliency planning and litigation liability. The panel, A Rising Tide Lifts all… Lawsuits? Climate Change Adaptation/Mitigation and Potential Municipal Liability, included significant audience participation in a discussion of how utilities can prepare for and respond to a changing climate, and how best practices can be developed to support them.
Presentations and materials from the Seminar, including the Top Clean Water Act Cases of the Year Handout, are available on NACWA’s website. NACWA thanks all participants and sponsors from this year’s events.