Clean Water Advocacy - Newsroom - AMSA in the News
Act's Citizen Suit Provisions Must Be Revised To Bar Duplicative Lawsuits, City Officials Say
The citizen-suit provisions of the Clean Water Act should be amended to
prevent lawsuits from third parties in situations where government regulators
are already taking enforcement action for violations, city officials told a
House subcommittee Sept. 30.
Representatives from California municipalities said provisions in the Clean
Water Act allowing citizen groups to sue over violations of the act have been
abused, especially in cases involving small cities who are forced to settle
rather than spend even more money defending themselves. They testified at a
hearing on the alleged abuses conducted by the House Transportation and
Infrastructure Subcommittee on Water Resources and Environment.
Jere Melo, the mayor of Fort Bragg, a city of 7,000 in Northern California, said
that city experienced such a situation. In 1997, the city complied with an order
from the regional water quality board to repair the collapsed bio-filtration
process at its wastewater treatment plant, he said. A year later, the city was
directed to prepare a plan to meet effluent limits not based on the type of
treatment system at the facility.
When it came time to renew the city's permit for the facility containing limits
reflecting the treatment system, the board delayed action after receiving
comments from Northern California Riverwatch, an advocacy group 100 miles away,
Melo said.
Because the permit was never changed to reflect the city's treatment system, the
city "remained subject to permit limits not appropriate for the type of
treatment plant it operated and made the City vulnerable to citizen suits for
permit violations," Melo said.
Settle Rather Than Fight
Riverwatch issued a notice to sue over the violations of the permit limits, and
the city opted to settle rather than fight, Melo said.
"We paid $12,000 to a Riverwatch-selected consultant to review our plant," Melo
said. "In an unmitigated promotion of his private business, his recommendation
was to purchase his brand of water treatment chemicals. Now this consultant is a
Riverwatch board member."
Melo said that litigation should not be allowed in situations where the entity
being sued is already under a compliance order.
Riverwatch describes itself as a nonprofit organization that has been known to
use litigation as a way to ensure protection of Northern California's rivers and
streams. The group said in a September 2003 statement announcing a settlement
with Syar Industries in Healdsburg, Calif., that it was revising its policy to
pursue agreements with parties rather than direct litigation.
"The agreements encourage compliance through cooperation rather than filing
lawsuits," the group said.
Provisions Serve Valuable Purpose
Christopher Westhoff, assistant city attorney for the Los Angeles Department of
Public Works, said municipalities are not asking that the citizen suit
provisions be removed.
"Citizen suits are a critical and important secondary source of Clean Water Act
enforcement," he said. "Municipalities need protection from redundant and
duplicative third-party lawsuits."
Third-party lawsuits should be used only in a situation where government
regulators fail to enforce provisions of the act, he said.
Compounding the problem, at least for municipalities, he said, is the "narrow
interpretation" by the Environmental Protection Agency of regulations that
essentially prohibit any spills from sewer systems. Because of the vast network
of pipes and other infrastructure that is part of a wastewater treatment plant,
operators cannot guarantee that there will never be any leaks or incidents to
cause sewage to spill from the system.
Los Angeles just settled a case with Santa Monica Baykeeper that began in 1998
after 50 million gallons of sewage was spilled because the city's wastewater
treatment system was overtaxed after experiencing record rainfalls, Westhoff
said (Santa Monica BayKeeper v. Los Angeles, C.D. Cal., No. 98-9039, 8/6/04; 152
DEN A-6, 8/9/04 ).
He added that while 50 million gallons sounds like a lot, the system annually
transports more than 190 billion gallons for treatment.
After the spill, the department settled with city enforcement officials and
agreed to pay $850,000 in fines and environmental improvement projects, Westhoff
said. In addition, Los Angeles agreed to expedite a $600 million project to
upgrade its sewer system.
Baykeeper Sues After Upgrades Begin
Baykeeper sued after the agreement was reached, Westhoff said, and the suit was
not precluded by the enforcement action because the group only had to allege the
future spills were likely while the project was underway.
According to information from Baykeeper, the lawsuit alleged more than 20,000
spills that were not getting the attention of enforcement officials. The group
said subsequent lawsuits by federal and state officials were consolidated with
the Baykeeper suit.
Westhoff said the city paid $5 million in outside attorneys fees, $1.6 million
for Baykeeper's fees, other citizen intervenors attorney fees of more than
$400,000, penalties of $800,000, and $8.5 million for environmental projects.
He added that he did not think Baykeeper was trying to extort money from the
city, but said that the settlement with the group did not differ much from what
was already going on as a result of the government's enforcement activities.
Mark Dellinger, special districts administrator for the Lake County Sanitation
District in Northern California, cited several other cases brought by
environmental groups against small cities that eventually agreed to settle
rather than incur the expense of litigation when they might not prevail.
"Given the length of time it takes to plan, finance, and construct improvements,
many agencies find themselves in a gray area where even though they have
committed to a specific set of improvements, they cannot avoid occasional
violations while these upgrades are being made," Dellinger said.
One problem faced by municipalities is that in the past, the focus was on the
construction of wastewater treatment plants, and money was available for those
projects, he said. Now attention has turned to the collection system, such as
pipes and pumps, but no money is attached for maintenance and upgrades, he said.
"It's the collection system that is the most expensive to build and maintain,"
he said. "It's not an appropriate use of funds to be paying attorney's fees when
we need to pay to fix the problem."
By Susan Bruninga