This man raises some interesting points - pay particular attention to the discussion of the predatory litigious groups, the Ecological Rights Foundation, River Watch:
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925 L Street, Suite 1400 Sacramento, CA 95814 PH: (916) 448-4808 www.casaweb.org
CALIFORNIA ASSOCIATION of SANITATION AGENCIES
TESTIMONY OF THE CALIFORNIA ASSOCIATION OF SANITATION AGENCIES
Presented by
MARK DELLINGER
SPECIAL DISTRICTS ADMINISTRATOR
LAKE COUNTY, CALIFORNIA
Submitted to the
SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
U.S. HOUSE OF REPRESENTATIVES
WASHINGTON, DC
September 30, 2004
Ensuring Clean Water For California
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Good Morning, Mr. Chairman and Members of the Subcommittee:
I am Mark Dellinger, Special Districts Administrator for the Lake County Sanitation
District in Northern California. It is my privilege to address the Subcommittee today on
behalf of the California Association of Sanitation Agencies (CASA). CASA is a statewide
nonprofit association of over 100 local public agencies that provide wastewater collection,
treatment, disposal and water recycling services to millions of Californians. Lake County
Sanitation District is a member of CASA.
There is no question that citizen enforcement has played an important role in the
implementation of the Clean Water Act and other environmental statutes. Congress
envisioned that the role of the citizen lawsuit would be to supplement, not supplant, the
primary enforcement function of the States and the federal government. In recent years in
California, however, we have seen a cottage industry develop in which plaintiffs’ attorneys
file citizen suit after citizen suit against numerous local agencies without regard to the
magnitude or the environmental impact of the alleged violations, and despite the fact that
communities may already be taking steps to rectify their situations, either voluntarily or
because the State or USEPA has already undertaken administrative enforcement action.
The Clean Water Act imposes strict liability upon regulated entities. Local public agencies
are required to conduct thousands of analytical tests each year, so it is not surprising that
there may be a few exceedances. The results must be reported in the form of public
records. Thus, establishing a Clean Water Act case is generally very simple. And no
matter how strong a showing the local agency can make that it is doing everything it can to
comply with its permit and protect water quality, proof of even a handful of violations over
a five year period is sufficient to render the plaintiff a “prevailing party” entitled to
payments of attorneys fees and costs. As local agencies strive to comply with ever
changing, increasingly stringent regulatory requirements, every violation, however minor,
is accompanied by the specter of possible administrative enforcement and citizen litigation.
I would like to briefly discuss the Lake County Sanitation District’s experience, summarize
the experiences of several other communities around the State, and close by offering the
Subcommittee some suggestions for reform that we believe will help to reinforce the
original intent that citizen litigation serve as a “gap filler,” to provide a safety net for the
enforcement of real environmental violations where the government fails to step in.
The Lake County Sanitation District manages and operates four wastewater treatment
plants and is responsible for 200 miles of sewer collection pipes. We serve a large
geographic area that is relatively rural, with a low population density, which makes it more
difficult and costly to manage. The median household income in the communities we serve
is 62% of the statewide average. In recent years, the District has undertaken a number of
capital improvement projects, implemented an enhanced spill response program and made
staffing changes to reduce overflows of treated effluent from our treatment facilities as well
as to control overflows from our sewer system. Our Board recently approved a series of
rate increases to raise revenues to improve our entire system. In addition, the District has
received federal and state grant funding for our Full Circle project, which involves
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supplying our treated effluent to recharge the Geysers steam field. We see this as a win-
win situation; water quality is improved due to the beneficial reuse of our effluent as an
alternative to discharge, and the Geysers project generates clean energy for California
residents and businesses.
These types of improvements do not happen over night, of course, and unfortunately, as the
District has worked to implement its long-range plans, violations of its state discharge
permits have occurred, some of which may also be violations of the Clean Water Act. The
State regulatory agency, the Regional Water Quality Control Board, placed one of the
District’s two largest treatment systems under an enforcement order, which requires that
certain actions be taken by specified dates. The Regional Board was contemplating taking
similar enforcement action for the District’s Southeast Regional system, but had not yet
issued an administrative order when a so-called “citizen group,” Northern California River
Watch, sued the District in October 2003 for alleged violations of the Clean Water Act at
both of the treatment plants and the associated sewer collection systems. Because the
District had not paid a monetary penalty as part of the State enforcement and compliance
actions, under Ninth Circuit case law, River Watch’s suit was not barred by Clean Water
Act Section 1319(g). After River Watch’s suit was filed, the Regional Board issued a
complaint for monetary penalties against the District for some of the same violations, and
the District is now faced with the worst of both worlds: expending its limited resources to
defend a citizen lawsuit and paying potentially duplicative penalties in a parallel
administrative enforcement action. This is surely not what Congress envisioned.
Other witnesses you will hear from today will tell their similar stories. I would just like to
mention a couple of other examples of citizen lawsuits against public agencies to assist the
Subcommittee in understanding that Lake County’s experience is not unique.
In January 2000, in response to a significant sewer overflow from the City of Pacific
Grove’s collection system into surface waters, the Regional Board levied a $70,000 fine,
required payment toward a supplemental environmental project, and set forth specific
directives to upgrade and enhance Pacific Grove’s sanitary sewer collection system. The
City paid the fine and began implementing the programs and asset improvements as
directed. In June, 2003, the Ecological Rights Foundation filed a citizen suit against Pacific
Grove for alleged violations of the Clean Water Act based on very small sewer overflows,
overflows that most likely did not reach navigable waters, and the 2000 overflow in
response to which Pacific Grove had already undertaken several new programs to address
the prevention of sewer overflows. The resulting consent decree largely memorialized the
work the City was already undertaking and did not measurably enhance water quality
protection. All but two of the overflows alleged in the complaint were less than 100
gallons. The majority of the alleged violations were less than 20 gallons and did not make
it to the Bay. Pacific Grove will pay plaintiffs $300,000. The amount of fees and costs the
plaintiff requested were over $400,000, all of which were allegedly incurred within one
year and without going to trial. The aggressive pursuit of litigation versus meaningful
settlement negotiations was the major factor in the large fees incurred.
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The El Dorado Irrigation District, located in the Sierra foothills, experienced a series of
wastewater compliance issues caused by growth in the local service area, combined with a
wastewater treatment facility which – unknown to the District until it was too late – was not
capable of functioning to its designed capacity. The facility discharged treated water into a
seasonal stream that would not have existed without the facility’s discharge. Despite the
facility’s difficulty in meeting all of its permit requirements, the water it discharged into the
stream had allowed a thriving ecosystem of native fish, plants, animals, and birds to
develop and to survive and flourish through the dry summer months.
In order to meet its permit requirements more consistently, the District embarked on a
fourteen million dollar treatment plant upgrade project. The project was proceeding under
the oversight of the Regional Water Quality Control Board, which was also processing an
enforcement order for penalties for past violations, when the California Sportfishing
Protection Alliance filed a citizens’ suit seeking penalties for exactly the same permit
violations.
Even after the District paid a $105,000 penalty to the Regional Board, the Sportfishing
Protection Alliance refused to dismiss its suit. The District was ultimately compelled to
pay an additional $140,000 for a supplemental environmental project in lieu of penalties
and $160,000 in costs and attorneys fees to settle the citizens’ suit simply to avoid the
continued cost of litigation. Although supplemental environmental projects are supposed to
bear some relationship to the harm caused by the violations, the project selected by the
citizen’s group was for riverbank restoration tens of miles away from the wastewater
treatment facility in an area that had never been affected by the District’s facility.
The City of Healdsburg, located in the Northern California wine country, instituted a
state-of-the-art sewer maintenance program to eliminate any risk of sewer system
overflows. Although it had no sewer system overflows for over three years, and there had
been only two overflows in the two years before that (each of which was due to blockages
in private laterals, not in the public system), Northern California River Watch filed a notice
of intent to file a citizens’ suit seeking affirmative injunctive relief and penalties for sewer
system overflows. Healdsburg met with River Watch’s attorney and made their entire set
of public records available for review to demonstrate the effectiveness of their program.
Nonetheless, the citizen group filed the lawsuit and, after Healdsburg had defended itself
for over a year and spent tens of thousands of its taxpayers dollars on it own attorneys, the
citizen’s group settled for no penalties and only $7,500 in attorneys fees.
In 1995, a citizen group filed its first lawsuit against the City of Santa Rosa. The City
won the first lawsuit at trial and on appeal. The same citizen group sued the city again in
1998 and then settled after the city agreed to pay for environmental remediation and a
portion of the attorneys’ fees and costs. The citizen group agreed not to sue the city for
violations that might occur before a date in the future. In 2000, the City of Santa Rosa
was sued for a third time by the same attorney representing substantially the same plaintiffs.
Throughout the time all three lawsuits were initiated and pending, the City was under a
Cease & Desist Order issued by the Regional Water Quality Control Board, under which
the City was required to develop and implement a reclaimed water disposal project within a
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specific time schedule. That project was later implemented in compliance with the state-
issued enforcement order.
Prior to the filing of the third lawsuit, the State commenced a comparable enforcement
action (seeking monetary penalties) against the City by publishing notice and scheduling a
hearing regarding the issuance of a complaint for administrative penalties against the City.
However, because the penalty order was not issued until after plaintiffs' lawsuit was filed,
the Federal District Court found that the state's comparable enforcement action did not bar
the plaintiffs' lawsuit.
The City was not only fined $98,350 by the RWQCB for violations alleged in the third
lawsuit but also settled the third lawsuit for a total of $195,000 ($75,000 in attorneys fees
and $120,000 to fund a grant program). Under the terms of the settlement of the third
lawsuit, plaintiff Northern California River watch agreed not to sue the City pursuant to the
Clean Water Act for a period of four years. On July 15, 2004—exactly two months after the
expiration of the stipulated moratorium on litigation-- River Watch filed a Notice of Intent
to Sue Santa Rosa for what can best be described as “creative” interpretations of the Act
and the City’s permit,. This will be the fourth Clean Water Act lawsuit against the City in
less than 10 years.
There are many more examples like these. I want to emphasize that none of these
communities were “perfect,” in that each of them had experienced compliance problems
and did not have spotless records. The important point is that in each case, either the
community was already acting by itself or the State had already stepped in and programs
were being implemented to guard against similar future violations. Just as the citizen suit
was intended to supplement government action, it was also intended to be “forward
looking.” Citizens may not sue for wholly past violations. 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.
From CASA’s point of view, reform is needed to ensure that citizen suits serve their
intended purpose of supplementing limited government enforcement resources and
preventing future violations. I would like to briefly mention several potential reforms for
the Subcommittee’s consideration.
Clarify Availability of Attorneys Fees:
The availability of attorneys fees is without question a significant motivation for some third
party plaintiffs to bring or threaten lawsuits. Under the Clean Water Act, a “prevailing”
citizen plaintiff is entitled to attorneys fees and costs; a prevailing defendant may only
recover fees if it can demonstrate that the plaintiff’s suit was frivolous or entirely without
merit. Thus, except in the most ill advised cases, there is very little downside to pursuing
litigation for a third party plaintiff. Contrast that with the circumstance of a local public
agency defendant that knows it has a strong case against sizeable penalties but nonetheless
has some exposure because of a few minor violations. If the defendant goes all the way
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through trial, even if it significantly reduces the penalty assessed, it may find itself on the
hook for not only its own attorneys' fees, expert fees, and costs, but also similar costs and
fees incurred by the plaintiff. These facts place the plaintiff’s attorney in a very strong
bargaining position with regard to settlement.
Of all of the possible reforms, revisions to the attorneys’ fees provisions of the Act are most
likely to bear fruit, as the availability of these fees is what is motivating many of the abuses.
With that in mind, CASA recommends that the Subcommittee consider the following:
• Limit attorney fee awards to the degree of success on the claims included in the
complaint. For example, if a plaintiff alleges 100 violations and proves 10, plaintiff
should able to recover only a proportionate amount in fees.
• Issue a clear statement of congressional intent that the attorney fee provision of the
Act be read as reciprocal, so that attorneys’ fees are available to the prevailing
party-- period. The language of the Act supports this reading, but the Courts have
interpreted the language to allow prevailing plaintiffs to recover fees while
prevailing defendants are held to a much more difficult standard.
• Place a cap on the amount of fees that may be obtained in a lawsuit against a public
agency. The cap could be set as either an absolute cap or as a percentage of any
penalties assessed. In the latter case, a proportionate cap would insure fees are not
disproportionate to the nature of the violations actually proven. While these steps
may not prevent “nuisance” suits, they would limit a community’s potential
exposure to exorbitant fees and make it less of a target.
Reinforce Primary Role of the States
Congress specified that no citizen suit could be maintained where the State or the USEPA is
“diligently prosecuting” an action against the alleged violator. Given the time it takes to
process a State enforcement action, the fact that the State is already “diligently prosecuting”
is not enough to bar a citizen suit. In addition, the Ninth Circuit has determined that only a
State enforcement action requiring the payment of monetary penalties will serve as a
defense to a citizen lawsuit. Because achieving compliance rather than punishment is
generally the goal of water quality enforcement actions, the State or USEPA will often
choose not to require payment of monetary penalties preferring to allow the agency to
spend its limited resources on fixing the problem. In light of this, we ask the Subcommittee
to consider:
• Requiring courts to consider the improvements and actions already being
undertaken by the community either on its own initiative or pursuant to an
enforcement order, a capital improvement program, or master plan, etc. The citizen
suit should not go forward unless it can be shown it is likely to “trigger” further,
significant and necessary improvement or redress the violations in a manner
supplemental to those already underway. Courts could be authorized and
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encouraged to stay citizen litigation while the improvements already contemplated
by the community are developed and implemented.
• Clarifying that where the State has already taken, or is in the process of taking, an
enforcement action for violations, citizen litigation for the same or similar violations
is barred, whether or not the State action is complete or included the assessment of
monetary penalties. The 60 day window within which government is supposed to
act is simply not adequate time for a state regulatory agency to investigate alleged
violations, evaluate the appropriate enforcement approach, issue a complaint,
provide an opportunity for public notice and comment, hold any required hearing
and complete the action. It should be sufficient for the State or USEPA to make a
determination as to whether it intends to enforce within a specified number of days.
If the government decides to bring an action, the citizen suit should be stayed
pending initiation and resolution of the agency enforcement action. If the State
enforcement action is not completed within a reasonable period of time, the third
party plaintiff could then proceed with its suit.
There may be other reforms suggested here today. CASA is very appreciative of the
Subcommittee’s interest and leadership in finding solutions to the citizen suit abuses. We
urge the Subcommittee to consider carefully the various options for improving the law and
ensuring that citizen suits against local government only proceed where they will promote
real environmental solutions. Local agencies want to be partners with the federal
government and the states in achieving water quality improvements. Diverting attention,
limited resources, and energy to defend third party lawsuits where compliance solutions are
already underway is counterproductive and disheartening.
Thank you for your time.
Melissa Thorme, an Attorney with the Sacramento law firm of
Downey Brand, LLP, and a Member of CASA’s Attorneys Committee, is here with me and
we would be pleased to answer any questions that the Subcommittee may have.
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