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Federal Court Hears Arguments in Clean Water Act Citizen Suit Alleging Non-Compliance with Municipal Stormwater Permit February 17, 2010 by Cassie N. Aw-yang cawyang@somachlaw.com |
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On February 8, 2010, the United States District Court for the Central District of California (Court) heard oral argument in Natural Resources Defense Council, et al. v. County of Los Angeles, et al. (CV08-01467-AHM (PLAx)), a case filed under the citizen suit provisions of the Clean Water Act (CWA). Petitioners, Natural Resources Defense Council and Santa Monica Baykeeper (non-governmental organizations or NGOs) allege that the County of Los Angeles and Los Angeles County Flood Control District (collectively, Permittees) violated and continue to violate their municipal separate storm sewer system permit (MS4 Permit) issued under the CWA’s National Pollutant Discharge Elimination System (NPDES) program. After oral argument, the Court took the parties’ summary judgment motions under submission. The Court will issue an order at some future date. Issues Raised in the NGOs’ Complaint The NGOs allege that the Permittees’ discharge of pollutants violates the MS4 Permit and CWA by causing and/or contributing to exceedances of water quality standards and total maximum daily loads (TMDL). The NGOs also allege that the Permittees failed to comply with the MS4 Permit’s reporting requirements. The CWA generally prohibits the discharge of pollutants into most surface waters except as authorized by an NPDES permit. NPDES permits are to ensure the protection of beneficial uses of the receiving waters by providing for the attainment or maintenance of water quality standards and compliance with TMDLs where applicable. TMDLs are adopted for waterbodies (or segments thereof) that do not meet their water quality standards. A TMDL specifies the amount of the impairing pollutant that the water body or segment can receive and still meet the applicable water quality standard(s). • Alleged Water Quality Standards Exceedances and Violations of the Bacteria TMDL Based on self-monitoring reports, the NGOs claim that the Permittees violate their MS4 Permit and the CWA by discharging pollutants from the municipal separate storm sewer system (MS4) into waters of the Santa Clara, San Gabriel Creek, Los Angeles River, and Malibu Creek Watersheds and Pacific Coast. The MS4 Permit prohibits non-stormwater discharges into the MS4 to prevent the MS4 from discharging the same into receiving waters. Among the various pollutants at issue are bacteria, metals and other constituents. These constituents are allegedly carried by runoff into and through the MS4 and ultimately into receiving waters where they allegedly cause or contribute to exceedances of water quality standards. In addition, the NGOs claim that the Permittees violate the MS4 Permit as amended to incorporate bacteria TMDL that prohibits discharges of bacteria to the Santa Monica Bay under specified conditions. • Alleged Failure to Report The NGOs also allege that the Permittees failed to submit reports required by the MS4 Permit in violation of the CWA. According to the NGOs’ complaint, the MS4 Permit requires the filing of a Receiving Water Limitations (RWL) Compliance Report when discharges cause or contribute to an exceedance of an applicable water quality standard. RWL Compliance Reports are to identify the pollutants at issue, analyze the potential pollutant sources and describe the plan for coming into compliance with the water quality standards and any applicable best management practices to prevent or reduce the discharge of pollutants. Parties’ Motions for Summary Judgment The NGOs moved for partial summary judgment based on some of the alleged MS4 Permit and CWA violations. A summary judgment motion asks the court to dismiss all or part of the case after considering all the evidence taken in a light most favorable to the non-moving party. Courts grant a summary judgment motion if there is no genuine issue of material fact in dispute and the party making the motion is entitled to the judgment as a matter of law. In arguing against the NGOs’ motion, the Permittees disputed several material facts at the core of the NGOs’ motion. For example, the Permittees presented expert testimony that no exceedances of water quality standards occurred. The Permittees’ experts also provided evidence that other sources are the cause of the alleged bacteria exceedances and that the Permittees do not have storm drains that discharge to the area at issue. The Permittees further argued that they had and have no obligation to file RWL Compliance Reports because there is no evidence that the Permittees caused or contributed to the alleged violations. Finally, the Permittees argued that the NGOs’ allegations of MS4 Permit and CWA violations are unfounded, and the Permittees are entitled to summary judgment to dismiss the claims. Conclusions and Implications On February 8, 2010, the Court heard argument whereby the NGOs allege that they are entitled to partial summary judgment on some of their claims that the Permittees violated the MS4 Permit and CWA by discharging pollutants that resulted and continue to result in exceedances of water quality standards and non-compliance with the bacteria TMDL. The NGOs also allege the violation of related reporting requirements. The Permittees argued that they are entitled to dismissal of the NGOs’ claims. The Court now must determine whether any or all of the claims should proceed to trial or be dismissed. Whatever the Court decides, the order that follows is likely to affect whether similar citizen suits will be filed in the future. For more information on this case or on municipal stormwater permitting, contact Cassie Aw-yang at cawyang@somachlaw.com. Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn. |
