ELR Citation: ELR 21250
No(s). 92-35044 (9th Cir. Jun 7, 1995)

The court holds that §505 of the Federal Water Pollution Control Act (FWPCA) authorizes an environmental group to enforce state water quality standards that are conditions of Portland, Oregon's, national pollutant discharge elimination system (NPDES) permit and were violated during combined sewer overflow (CSO) events. The court first holds that the district court's findings that the NPDES permit authorizes CSO events under specific circumstances are not clearly erroneous. There was significant evidence from the state environmental agency, which wrote the permit, to indicate that the CSOs were covered in the permit. Moreover, the agency's interpretation that the CSOs were permitted but not separately listed does not directly conflict with the environmental group's offered extrinsic evidence. Although technically the permit should have established effluent limitations for the CSOs, the court concludes that the district court was presented with sufficient evidence from which it could determine that the state environmental agency and the city intended to omit such limitations. If the excess effluent during storms was not released through the CSOs, the effluent would flood streets and basements until a total revamping of the Portland sewer system, at a cost of up to $1.2 billion, could be completed.

The court holds that FWPCA §505 provides the environmental group with a cause of action to enforce state water quality standards included in the city's NPDES permit. Section 505's plain language authorizes citizens to enforce all permit conditions. Consistent with the statutory language, the legislative history of the citizen suit provision reflects Congress' intention to grant broad authority for citizen enforcement. Ample case law, including the U.S. Supreme Court decision in PUD No. 1 of Jefferson County v. Washington Department of Ecology, 24 ELR 20945, supports the court's view that Congress intended to confer standing to enforce water quality standards. Although Jefferson County involved a state's authority to impose conditions under FWPCA §401, whereas the present litigation involves citizen suit enforcement of FWPCA §402 conditions, both the §401 certification process and the §402 permit process require applicants to comply with FWPCA §301, which incorporates by reference the water quality requirements of §303. Moreover, although Jefferson County addressed the authority of states, not citizens, to enforce the narrative conditions of FWPCA §303 water quality standards, nothing in the language of the FWPCA, its legislative history, or the implementing regulations restricts citizens from enforcing the same conditions of a certificate or permit that a state may enforce. The court holds that a live and genuine controversy remains and the case is not moot, because the environmental group claims entitlement to attorney fees based on the alleged violations of the permit, and seeks to enforce the water quality standards independently of the effluent limitations. Finally, the court remands for a determination on the issue of the §309(g)(6) defense because the district court did not reach this ground.

[A previous opinion in this litigation 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
Terence L. Thatcher, Deputy City Attorney
City Attorney's Office
1220 SW 5th Ave., Rm. 315, Portland OR 97204
(503) 823-4047

Before Pregerson, Kleinfeld, and Ingram,^* JJ.