ELR Citation: ELR 20999
No(s). 91-16310 (9th Cir. Jun 16, 1993)

The court holds that the city of Phoenix, Arizona, may intervene as of right in a Federal Water Pollution Control Act (FWPCA) §505(a)(2) citizen suit to compel the U.S. Environmental Protection Agency (EPA) to promulgate water quality standards for toxic pollutants for Arizona waters, to list impaired waters, point sources, and control strategies, and to implement the control strategies by imposing new and final national pollution discharge elimination system (NPDES) permit requirements on the city's wastewater treatment plants. Applying a four-part test for intervention as of right, the court holds that the city may intervene. First, the court holds that the timeliness of the city's application for intervention is not disputed. Second, the inadequacy of Phoenix's representation by the existing parties is also not in dispute. Third, Phoenix has a protectable interest relating to the action. The city owns rights among those traditionally protected by law relating to the NPDES permits that are the subject of the action, and a decision adverse to the city would affect the use of the city's property by requiring EPA to change the terms of the city's permits. Thus, there is a relationship between the legally protected interest and the claims at issue. Further, distinguishing this case from National Environmental Protection Act intervention cases in which only the federal government can be a defendant and have the requisite protected interest, the court notes that the FWPCA protects Phoenix's interest by providing for the challenged NPDES permits. Because the FWPCA protects the interest of a person who discharges pollutants pursuant to a permit, and Phoenix owns such permits, the city has a protectable interest. The court also finds the city to have a protectable interest with respect to the compilation of lists of problem waters and to the identification of point sources. This compilation triggers the city's obligation to implement control strategies, such that adjudication on these issues could result in practical impairment of Phoenix's interests. Finally, the court finds that the city satisfies the four parts of the test for intervention as of right because disposition of the action may impair or impede the city's ability to protect its interest. A decision in this action will control the resolution of those issues, and any further proceedings regarding the city's NPDES permits will be constrained by the stare decisis effect of the lawsuit.

Counsel for Plaintiff
Maria S. Kennedy
Sierra Club Legal Defense Fund
180 Montgomery St., Ste. 1400, San Francisco CA 94104
(415) 627-6700

Counsel for Defendant
James C. Hair Jr., Ass't U.S. Attorney
U.S. Attorney's Office
4000 U.S. CtHse., 230 N. First Ave., Phoenix AZ 85025
(602) 379-3011

Kleinfeld, J. (before Browning and Thompson, JJ.):