AWWA JAW66119

This article discusses a legal challenge to the Long Term 2 Enhanced Surface Water Treatment Rule (LT2ESWTR) mounted by the city of Portland, Oregon, and New York City in the U.S. Court of Appeals on September 25, 2007. Surface water systems typically protect customers from Cryptosporidium by providing filtration treatment. The city of Portland, and New York City, however, do not filter their drinking water before it reaches consumers. Instead, both cities have implemented active source water protection programs to protect public health. Both cities face high costs to comply with the final LT2ESWTR and have a responsibility on behalf of their populace to ensure that expenditures (and rate increases) to meet regulatory requirements are fully justified. Portland challenged the final LT2ESWTR following its promulgation on Jan. 5, 2006 (USEPA, 2006), by filing a petition for judicial review in the Appeals Court. New York City filed a motion to intervene on behalf of the petitioner which was granted by the Appeals Court. This article focuses on the following arguments presented by the two cities: the cost-benefit analysis for the LT2ESWTR was improper and overstated the benefits of regulation; notice and opportunity for public comment was inadequate; substantive comments on the draft rule were ignored; best available science was not used; and, the final rule was not supported by the rulemaking record. The US District Court of Appeals for the D.C. Circuit denied the cities' petition for judicial review, upholding the U.S. Environmental Protection Agency (USEPA) rule and thereby clarifying provisions of the Safe Drinking Water Act (SDWA). Includes 5 references.