ELR Citation: ELR 20238
No(s). 92-35044 (9th Cir. Dec 10, 1993)

The court holds that §505 of the Federal Water Pollution Control Act (FWPCA) does not authorize a citizen suit against the holder of a national pollutant discharge elimination system (NPDES) permit for direct enforcement of state water quality standards even when such standards are adopted as permit conditions. Environmental advocates sued the city of Portland alleging that the city's practice of discharging raw sewage during times of precipitation from combined sewer overflow (CSO) outfall points into the Columbia and Willamette Rivers violated state water quality standards that were conditions of the city's NPDES permit. The court first holds that the permit authorized limited discharges from the CSOs. Although the CSOs were not listed in the permit, significant evidence presented by the agency that authorized the permit indicated that the CSOs were covered in the permit. The court holds that the FWPCA does not provide federal jurisdiction for citizen suits attempting to enforce water quality standards contained in an NPDES permit. The FWPCA does not require that a permittee directly comply with water quality standards. It is the permit issuing authority's duty to ensure that water quality standards are met through end-of-the-pipe effluent limitations. The court next holds that under FWPCA §505, water quality standards are only enforceable by citizen suit if they have been translated into end-of-the-pipe effluent limitations. The court holds that it lacks jurisdiction over plaintiffs' citizen suit because they did not allege violations of end-of-the-pipe effluent limitations, and, in fact, the water quality standards included as conditions in the city's NPDES permit have not been translated into such effluent limitations. The legislative history of the FWPCA makes clear that Congress did not intend to create a limitless grant of jurisdiction for §505 actions and that the scope of citizen enforcement is limited to actions brought against those who violate effluent standards or compliance orders, not water quality conditions. Moreover, the enforcement of general water quality maintenance conditions would require courts to engage in subjective analysis of technological considerations, which would directly conflict with Congress' emphasis on the evidentiary simplicity of enforcement actions.

[The district court's decision is published at 22 ELR 21347.]

Counsel for Plaintiffs
Patrick A. Parenteau
Perkins & Cole
U.S. Bancorp Tower
111 SW 5th Ave., Ste. 2500, Portland OR 97204
(503) 295-4400

Counsel for Defendant
Terrence L. Thatcher, City Attorney
City Attorney's Office
1220 SW 5th Ave., Rm. 315, Portland OR 97204
(503) 823-4047

Ingram,^* J. (before Pregerson and Kleinfeld, JJ.):