Appendix — City of Portland v. Northwest Environmental Advocates

App-i

APPENDIX

TABLE OF CONTENTS

United States Court of Appeals for the

Ninth Circuit, No. 92-35044,

Opinion of December 10, 1993 ....

United States Court of Appeals for the

Ninth Circuit, No. 92-35044,

Order and Opinion of June 7, 1995 .

United States Court of Appeals for the

Ninth Circuit, No. 92-35044,

Order of January 24,1996 .......

United States District Court for the

District of Oregon, No. CV-91339-PA,

Amended Opinion of January 8, 1992

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App-ii

Memorandum from United States Environmental

Protection Agency, regarding Policy Statement

on Scope of Discharge Authorization and

Shield Associated with NPDES Permits,

fo 6 Prey eee App-174

App-!

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Northwest Environmental Advocates)

A Non-Profit Oregon Corporation ) No. 92-35044

and Nina Bell, )

Plaintiffs-Appellants, ) D.C. No.

v. CV-91-339-PA

City of Portland,

Defendant-Appellee.

OPINION

Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, District Judge, Presiding

Argued and Submitted

May 6, 1993- Portland, Oregon

Filed December 10, 1993

Before: Harry Pregerson, Andrew J. Kleinfeld, Circuit

Judges, and William Ingram, District Judge

Opinion by Judge Ingram; Partial Concurrence and Partial

Dissent by Judge Pregerson

INGRAM, District Judge:

Northwest Environmental Advocates and Nina Bell

(NWEA) appeal from the district court's judgment in favor

of Portland on their claims that the City is violating the

Clean Water Act (CWA).

On April 16, 1991, NWEA filed suit in the district court

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alleging that Portland's practice of discharging raw sewage

during times of precipitation from 54 outfall points was not

covered by a permit and that the practice had caused and

was continuing to cause violations of Oregon's water

quality standards. After a trial on the written record, the

district court held that 1) the contested discharge points

were covered by Portland's pollution permit, and 2) the

court lacked jurisdiction to consider NWEA's water quality

violation claims. We AFFIRM both holdings.

I. BACKGROUND

A. THE PORTLAND SEWAGE TREATMENT SYSTEM

At issue is the operation of the Portland sewer system.

Portland operates a sewage treatment system that includes a

network of combined sewage and stormwater pipes.

Although the construction of these combined sewer pipes

was discontinued in 1962, approximately 70% of the City's

sewers remain combined sewers. Supp. E.R. 21. The

effluent flowing in the system ideally is intercepted and

transported to the Columbia Boulevard Treatment Plant

where it is treated and then discharged into the Columbia

River through two outfalls (Nos. 001 and 002). The

interceptors can carry only “’three times [the] average dry

weather flow’” of effluent to the treatment plant.

Sunnarborg Aff., Supp. E.R. 21. When the flow exceeds

the plant's capacity, as can occur during periods of

precipitation, the effluent is released untreated through a

system of combined sewer overflow (CSO) outfalls in what

is termed a CSO event. There are between 50 and 80 CSO

events every year in Portland. E.R. 216; see also Bureau

of Environmental Services, City of Portland, Columbia

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Slough Planning Study Background Report (1989) (there

are between 67 and 79 CSO events per year in the

Columbia Slough).

Portland has 54 CSO outfalls; 12 drain into the Columbia

Slough and 42 drain into the Willamette River. These

waterways and their environs are used by Portland residents

for recreation, including water contact activities such as

boating. The release of untreated sewage into such public

waters can present health risks. See National Combined

Sewer Overflow Control Strategy, 54 Fed. Reg. 37370,

37371 (1989) (“CSOs have been shown to have severe

adverse impacts on human health under certain

conditions.”). Appellants have supplied both anecdotal and

scientific evidence of the polluted nature of the Willamette

River and the Columbia Slough, especially during and

immediately after CSO events. See, e.g., Portland's

Response to NWEA's Interrogatories, E.R. 119; Thutt

Aff., E.R. 159-178; Pratt Aff., E.R. 20.

Abatement of CSO events is not easy. It has been

estimated that to solve the problem in Portland alone will

cost between $500 million and $1.2 billion dollars. E.R.

221. Estimates for the entire nation are between $70

billion and $109 billion dollars. Environmental Groups

Call for Effort to Deal with Combined Sewer Problems, 23

Env. Rptr. (BNA) 13 (1992) (upgrades could start at

between $70 and $80 billion dollars); Combined Sewer

Overflow Problems Demand New Approach, Local Officials

Say, 20 Env. Rptr. (BNA) 1939 (1990) (costs could be as

high as $109 billion).

App-4

B. PROCEEDINGS IN THE DISTRICT COURT

On February 1, 1991 NWEA gave written notice to Port-

land, the EPA Administrator, the State of Oregon, and the

EPA Regional Administrator of its intent to file suit in the

district court challenging the legality of the CSO

discharges. Complaint, E.R. 9. In April 1991, after the

required 60 day notice period, NWEA filed this action.

The crux of the NWEA complaint was that the 54 CSO out-

falls being used regularly by the City were not covered by

the City's 1984 National Pollution Discharge Elimination

System (NPDES) permit. Because unpermitted discharges

of pollutants are illegal, NWEA argued the City was

violating the CWA. Even if the CSOs were covered by the

permit, NWEA argued that the discharges violated Oregon

water quality standards and therefore violated a condition

of the Permit. These violations were ongoing and likely to

continue. NWEA prayed for injunctive relief and civil

penalties. Complaint, E.R. 10-11.

The 1984 permit was to expire in July 1989. However it

remained in effect until Portland and the Oregon

Department of Environmental Quality (DEQ)! were able to

complete the renewal process and agree on the terms of a

new permit. DEQ forwarded a draft of a proposed renewal

permit to Portland in December 1990. This draft permit

required the City to "meet water quality standards at all

discharge points, including CSOs,. . .". Appellee's Brief at

'National Pollution Elimination Discharge Permits in

Oregon are issued by DEQ.

is ait

hn) Sewer

App-5

11. Because Portland could not meet the five year time

table set forth in the proposed renewal permit, id. , the

parties determined that a compliance order separate from

the renewal permit, and requiring eventual abatement of all

CSO events, was appropriate. After a period of Notice and

Comment, Portland and the DEQ came to an agreement in

August 1991. Under that settlement, Portland's new permit

specifically listed the CSOs as permitted discharge points.

In addition to the permit, the parties entered into a

stipulation and final order (SFO) in which Portland agreed

to replace the CSO system within the next 20 years.

Once these negotiations had been completed, Portland filed

a motion to dismiss and the parties filed cross-motions for

summary judgment. The court bifurcated the proceedings;

first it would address whether Portland could be held liable

for violations of the CWA, and then if necessary, determine

whether violations had occurred and impose any necessary

penalties. The parties stipulated to a trial of the liability

phase on the summary judgment submissions, allowing the

court to decide questions of fact as well as questions of

law. Amended Opinion, E.R. 73.

After reviewing the submissions the district court issued an

opinion and judgment. It later filed an amended opinion

which was essentially the same as the original. The court

found that Portland's 54 CSOs were covered by the 1984

NPDES permit, and thus that the City was not in violation

of the Act for allowing unpermitted discharges. It also

rejected NWEA's claim that Portland would nonetheless be

liable for violating Oregon's water quality standards

because the CWA did not confer federal jurisdiction to

entertain citizen suits to enforce state water quality

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standards.

Il. ANALYSIS

A. DOES THE 1984 PERMIT COVER THE CSOs?

In the court below, NWEA argued that Portland had vio-

lated and continued to violate the CWA by discharging

through unpermitted outfalls. The district court found

otherwise, holding that the relevant NPDES discharge

permit authorized CSO events under specific circumstances.

NWEA asserts that the district court erred in so interpreting

the permit.

We review the district court's interpretation of the 1984

permit as we would the interpretation of a contract or other

legal document. When reviewing a district court's

interpretation of such a writing, the court reviews de novo

the determination of whether it is ambiguous. Jn re U.S.

Fin. Sec. Litig., 729 F.2d 628, 632 (9th Cir. 1984).

Interpretation of an unambiguous writing is also a question

of law subject to de novo review. Culinary & Service

Employees Union, Local 555 v. Hawaii Employee Ben.

Admin. Inc., 688 F.2d 1228, 1230 (9th Cir. 1982). If the

court must look to extrinsic evidence in order to interpret a

writing, its findings of fact are reviewed for clear error.

U.S. Fin. Sec., 729 F.2d at 632; Culinary & Service

Employees Union, 688 F.2d at 1230; In re Agricultural

Research & Technology Group, Inc., 916 F.2d 528, 537

(9th Cir. 1990).

NWEA argued in the court below that the 1984 permit cov-

ered only two point sources, outfalls 001 and 002 from the

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treatment plant.”

The 1984 permit expressly "covers" only two point

sources, outfalls 001 and 002 from the treatment plant.

These outfalls are listed on the first page of the permit as

the "SOURCES COVERED BY THIS PERMIT." E.R.

222. The 54 CSOs are not listed in this section. The first

page of the permit also states that the receiving waterway

for these discharges is the Columbia River. The

Willamette River and the Columbia Slough are not

mentioned.

Immediately below the section listing "SOURCES

COVERED,” the permit provides a description of the

activities that are covered by the permit. This section,

"PERMITTED ACTIVITIES,” states that Portland is

authorized to “operate a waste water collection, treatment,

control and disposal system and discharge to public waters

adequately treated waste waters only from the authorized

discharge point or points established in Schedule A... ."

E.R. 222 (emphasis added). Schedule A provides the

effluent limitations for outfalls 001 and 002. More

importantly, however, it provides that:

The permittee shall provide interception of at least three

times the dry weather flow before discharge shall occur at

any diversion structure. The overflow from

these diversion structures shall be minimized and/or

eliminated as much as practicable during the water

Effluent from outfalls 001 and 002 has been treated

before it is discharged into the Columbia River.

App-8

recreation season (June 1 to October 31).? E.R. 223.

Thus, on the face of the permit it appears that CSO events

were considered to be a "permitted activity." Finally,

Schedule C provides that the City must "continue to work

toward the separation of sanitary sewage and storm water

in presently developed areas in which this method is cost

effective." E.R. 224.

NWEA contends that the court should only heed the first

portion of the permit listing covered sources.* Because the

CSOs are not specifically listed on page one as permitted

sources, NWEA argues, they must not have been encom-

passed by the permit and are therefore illegal. To follow

this reasoning would require the court to read the

references to diversion structures out of the permit

>The parties do not dispute that “diversion structure”

refers to the CSOS.

In earlier permits, the 54 CSOs were listed in this

provision of the permit. See Supp. E.R. 13 (1979) permit,

"Discharge at overflow points 003 through 066 is permitted

when the flow at diversion structures exceeds three times the

dry weather flow.”); Supp. E.R. 2 (1974 permit - same).

‘NWEA attempts to downplay the importance and

placement of the references to diversion structures, implying

that they are somehow a part of the fine print. In reality

however, the limitations on the frequency of CSO events

appears in normal sized type on page two of the permit,

directly below the effluent limits for discharges from outfalls

001 and 002. See, E.R. 223

App-9

altogether. The limitations on the frequency of CSO events

and the requirement that Portland work towards upgrading

its sewer system would then constitute mere surplusage.

The 1984 permit is clear on its face in permitting CSO

events under specified conditions. The description of

permitted activities specifically allows Portland to operate a

sewage system and to discharge through two separate sets

of discharge points, those listed on page one as authorized

discharge points, and those described and listed in Schedule

A.

The extrinsic evidence presented to the district court only

strengthens this conclusion. The parties each offered evi-

dence, in the form of affidavits and other documentary evi-

dence, to support their respective understandings of the

1984 permit. NWEA relied mainly on four documents to

support the position that the CSOs were not, and had never

been, permitted. The first was a letter from W.C. Gaffi,

Portland's Chief Engineer, to DEQ in 1988. Gaffi stated

that "[t]he City supports ODEQ's position to permit the

CSO outfalls through a modification to the existing

treatment permit. This approach should achieve the same

goal as individual CSO permits and reduce the

administrative cost of doing so." E.R. 278. The second

document was an October 1990 memorandum from two

members of the Portland Bureau of Environmental Ser-

vices. In this memo, Linda MacPherson and Dave Kliewer

indicated the need to set up a "discussion to determine if

the CSOs are going to be permitted or not?" E.R. 279.

The third is an undated memorandum in which a DEQ

employee wrote that "[t]he potential exists for permitting

both the storm and combined sewer discharges" E.R. 191.

App-10

NWEA argues that these three documents imply that the

CSOs were not covered under the 1984 permit, because if

they were, there would be no need to address including

them in future permits.

Finally, NWEA offered a DEQ policy statement entitled

"Strategy for Regulating Combined Sewer Overflows."°

The report states that "[n]one of these outfalls [the CSOs]

are covered by a permit, however, all are proposed to be

addressed in the Portland-Columbia Blvd STP permit

renewal." E.R. 208.

NWEA argues that this statement proves that DEQ had not

permitted the CSOs in the 1984 permit. Portland, however,

offered an affidavit by the author of the report to explain

the statement. Barbara Burton explained that the quoted

text did not mean that Portland's CSOs were not covered

by an NPDES permit, and therefore were illegal. Instead,

it was intended to convey that "none of the outfalls were

individually listed with effluent limitations in Portland's

1984 NPDES permit. E.R. 281 (emphasis in original).

Barbara Burton's impression of the scope of the Portland

NPDES permit was shared by Harold L Sawyer, formerly

the Water Quality Division Administrator for DEQ. E.R.

282. Sawyer stated in his affidavit that "Portland's entire

*This February 1991 document appears to have been

prepared in response to the EPA's National Combined Sewer

Overflow Control Strategy. See 54 Fed. Reg. 37370 (Sept. 8,

1989).

App-11

sewer system, including CSO outfalls, was permitted by

Portland's 1984 NPDES permit and by its prior NPDES

permits." E.R. 283. According to Sawyer, DEQ knew,

and always had known, that the Portland sewer system

operated through a system of CSOs and treatment plants.

Id. Moreover, "[{i]f DEQ had considered combined sewer

overflows to be outside of Portland's NPDES permit, as

Water Quality Division Administrator for DEQ [he] would

have proposed a specific program and schedule for

treatment or elimination of such discharges for

incorporation in the permit or in a separate compliance

order." Jd. These are the steps that DEQ took in 1991.

Thus, "DEQ understood that Portland would continue to

operate its combined sewer system as it had been operating

the system prior to the existence of the NPDES permitting

program, to prevent dry weather combined sewer overflows

except during abnormal storm events." Jd. at 285.

This position is repeated in the 1991 SFO. DEQ stated that

"as a matter of policy the Department [DEQ] did not

always list CSO discharge points in an NPDES permit but,

in many instances, issued permits for an entire sewer

system . . . [Portland's] 1984 NPDES permit is a permit

for the sewer system, which includes CSO outfalls, but did

not contain specific effluent limitations for CSOs." E.R.

260-61.

The district court, having reviewed these conflicting state-

ments, found Portland's interpretation to be persuasive.

The court recognized the import of the Gaffi letter, but

determined that it was "not persuasive enough in the face of

the common sense reading of the permit, which when

examined in context with the older permits and when

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construed to give the language limiting discharges meaning,

directs a conclusion that the 1984 permit covered the CSO

discharges." E.R. 83. The Sawyer and Burton affidavits

were more persuasive because their explanations of the

1984 permit comported with the language of the permit

itself. Id.

NWEA argues that, notwithstanding the extrinsic evidence,

under the rules of contract interpretation the court must

find that the CSOs were not covered by the 1984 permit.

Courts should, if possible, interpret a contract so that its

terms will not be illegal. See Corbin, Contracts § 546 at

169 (1960). This rule is advisory and should not be applied

blindly to the detriment of the parties' intentions. "[A]

specific provision in an otherwise valid contract should not

be given a meaning that would have a legal effect that the

court is convinced the parties did not intend, even though

any alternative meaning will cause the provision to have no

legal effect whatever." Id.

Under the regulations promulgated pursuant to § 1342 of

the Clean Water Act, all NPDES permits should establish

technology-based effluent limitations for all permitted point

sources. 40 C.F.R. 122.44(a). Although technically the

permit should have established effluent limitations for the

CSOs, it appears that the parties intended to omit such

requirements. The district court was presented with

sufficient evidence from which it could determine that

DEQ, as well as Portland, intended this allegedly unlawful

interpretation. EPA approved the terms of the permit,

including the absence of effluent limitations for the CSOs,

even though the existence of the CSOs was clear on the

permit's face. Moreover, prior to 1989, it appears that

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many state permitting bodies believed that CSO outfalis

could be permitted without being subjected to effluent

limitations. See National Combined Sewer Overflow

Control Strategy, 54 Fed. Reg. 37370, 37371 (1989)

(proposed regulations to "control effluents from combined

systems which are not regulated under the sanitary system

standards nor as discharges from separate storm sewer

regulations"). Cf., Montgomery Environmental Coalition v.

Costle, 646 F.2d 568, 592 (D.C. Cir 1980) (interpreting

permit as allowing limited CSO events without effluent

limitations).

NWEA next argues that the district court erred by failing to

interpret the permit in the public interest. This is "a rule of

construction rather than one of interpretation, one that for

reasons of public policy requires the court to give to a

contract that legal operation that is of public advantage,

when a choice between that and a less advantageous

operation is reasonably open." Corbin, supra § 550 at 196.

In NWEA's view, the 1984 permit should be interpreted as

not allowing the CSOs because "[c]learly it is not in the

public interest to construe a permit so as to authorize the

gross pollution of public waterways." Reply at 7. The

alternative to the CSOs is a total revamping of the Portland

sewer system, the cost of which has been estimated at as

much as 1.2 billion dollars. E.R. 221. Moreover, until

such renovations could be completed, if the excess effluent

during storms was not released through the CSOs the

effluent would "flood[ ] streets and basements."

Sunnarborg Aff., Supp. E.R. 21. Although water

pollution is unfortunate, it beggars credulity to argue that

this alternative is so clearly more in the public interest than

the CSO events.

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The district court's findings are not clearly erroneous.

There was significant evidence from DEQ, the permit

author, to indicate that the CSOs were covered in the 1984

permit. Moreover, DEQ's interpretation, that the CSOs

were permitted but not separately listed, does not directly

conflict with NWEA's offered extrinsic evidence. Given

Sawyer's and Burton's explanations, Gaffi and

MacPhearson's concerns about permitting the CSOs can be

explained as concern over whether the CSOs should be

expressly listed on new permits.

We, accordingly, affirm the district court's finding that the

permit authorized limited discharges from the CSOs.

B. DOES NWEA HAVE A CAUSE OF ACTION FOR

WATER QUALITY VIOLATIONS?

NWEA argues that the district court erred in finding that it

did not have jurisdiction over a citizen suit for the

enforcement of the water quality maintenance provision of

the NPDES permit.

In the court below NWEA argued that, whether or not the

CSOs were specifically permitted under the 1984 NPDES

permit, Portland had violated and continued to violate

conditions of both the 1984 and 1991 NPDES permits.

Specifically, NWEA alleged that Portland's CSO events

violated a permit condition prohibiting any discharges that

would violate Oregon water quality standards. The 1984

permit held, as a condition in Schedule A, that

"[njotwithstanding the effluent limitations established by

the permit, no wastes shall be discharged and no activities

shall be conducted which will violate Water Quality

App-15

Standards as adopted in OAR 340-41-445 except in the

following defined mixing zone... . " 1984 Permit, E.R.

223. The mixing zone was defined as a 100 foot radius

around the discharge point. /d. The 1991 permit contained

similar limitations but eliminated the mixing zone pro-

vision. It also expressly applied the condition to the CSOs.

See E.R. 235 and compare with E.R. 223. NWEA offered

declarations and scientific reports that it argued establish

continuing violations of the water quality standards in the

waters surrounding the CSOs after CSO events. See, e.g.,

Portland's Response to Interrogatories, E.R. 119 (failure to

meet fecal coliform standards); Thutt Aff., E.R. 164 (“not

possible to have any CSO event that would not exceed the

DEQ's fecal coliform standard"); Rosolie Aff., E.R. 153-

54.

The district court never reached the question of Portland's

liability for violations of this permit condition. Instead, the

court held that the Act «id not grant federal jurisdiction for

the citizen enforcement of water quality violations,

“because water quality standards do not equal ‘effluent

standards or limitations under this chapter.’*” E.R. 84. A

general water quality maintenance condition like the one

found in the 1984 and 1991 permits is not the type of

“condition” that the court found would trigger federal

jurisdiction. Instead, "[g]iven the distinction between

effluent limitations and water quality standards, . . . and

the problems with analyzing violations of water quality

standards as opposed to effluent limitations, . . . state water

quality standards can constitute effluent standards,

violations of which may be actionable in a citizen suit, only

if they are incorporated into an NPDES permit through

effluent limitations.” E.R. 86. Because the water quality

App-16

standards in this case had not been translated into end-of-

the-pipe discharge limitations, NWEA was not authorized

to bring suit. Finally, the district court stated that to allow

enforcement of the standards would be "nonsensical"

because it would permit discharges from CSOs in Schedule

A while simultaneously prohibiting them. /d.

NWEA argues that the district court erred in finding that

the provisions of the CWA do not authorize federal

jurisdiction for citizen suits to enforce water quality

conditions of NPDES permits. Whether expressly stated

permit conditions prohibiting discharges that cause water

quality violations are enforceable by citizens is a question

of first impression in the courts of appeals. We review the

district court's interpretation of the statute de novo.

The City of Portland correctly points out that the

authorities generally reject citizen suit standing to enforce

water quality standards. See Oregon Natural Resources

Council v. United States Forest Service, 834 F.2d 842, 850

(9th Cir. 1987}; New York v. United States, 620 F.Supp.

374 (E.D.N.Y. 1985); McClellan Ecological Seepage

Situation (MESS) v. Weinberger, 707 F. Supp. 1182, 1200

(E.D. Cal. 1988). But see McClellan Ecological Seepage

Situation (MESS) v. Cheney, 763 F. Supp. 431, 443 (E.D.

Cal. 1989); MESS, 707 F.Supp. at 1203. We have said "it

is not the water quality standards themselves that are

enforceable in section 1311(b) (1) (C), but it is the

‘limitations necessary to meet' those standards, or ‘required

to implement’ the standards." Oregon Natural Resources

Council, 834 F.2d at 850; ree also MESS, 707 F.Supp. at

1200 ('[I]f a state water quality standard has not been

incorporated into an NPDES permit through an effluent

App-17

limitation, it is outside the scope of section 301(b)(1)(C).")

(emphasis added). All of these statements are either in

cases distinguishable from the one before us or are dicta.

Nevertheless, they do show that whenever courts have been

faced with the question, the answer has been that citizen

suits cannot be used to enforce water quality standards.

The plaintiffs have not cited any authority to us on the

other side.° They have not been able to find a single case

in which a court held that citizen suits could be used to

enforce water quality standards, whether the water quality

standards were incorporated in a NPDES permit or not.

The starting point for determining whether the CWA pro-

vides federal jurisdication for citizen suits attempting to

enforce water quality standards must be the statute itself,

both the provisions governing citizen suits and those

governing the establishment of water quality standards.

Every state is required to promulgate water quality stan-

dards. 33 U.S.C § 1313 (a). These standards are then

reviewed and either accepted or rejected by the EPA

Administrator. Jd. If it is determined that water quality

cannot be maintained or achieved under the normal effluent

limitations, the Act authorizes the imposition of stricter

*In Montgomery Enviromental Coalition v. Fri, 366

F.Supp. 261, 265 (D. D.C. 1973). the court held that water

quality standards were enforceable in ctizens suits, at least

until effluents under the Act had been promulgated.

However, the court later reversed itself. See Montgomery

Enviromental Coalition v. Washington Suburban Sanitary

Commission, 607 F.2d 378, 381 (D.C. Cir. 1979).

App-18

effluent limitations in order to attain and maintain water

quality.’ 33 U.S.C. § 1312; 33 U.S.C. § 1311(b)(1C)

(requiring by 1977 any more stringent standard for effluent

limitations necessary to meet water quality standards); 40

C.F.R. § 122.44(d)(1)(iii) (requiring stricter effluent limits

when necessary to avoid "an in-stream excursion above the

allowable-ambient concentration of a State numeric criteria

within a State water quality standard for an individual

pollutant."); see also Federal Water Pollution Control Act

Amendments of 1972, Pub. L. No. 92-500, 1972

U.S.C.C.A.N. 3668, 3712-13 (hereinafter 1972

U.S.C.C.A.N.); 54 Fed. Reg. 37370, 37373 (Sept. 8,

1990). (“Permits must be written to ensure CSO

discharges do not cause violations of water quality

standards.” ).

Federal jurisdiction over citizen suits to enforce the Clean

Water Act is authorized in 33 U.S.C. § 1365 (CWA §

505). Section 1365 authorizes private citizens to bring suit

in the district court "(1) against any person ... who is

alleged to be in violation of (A) an effluent standard or

limitation under this chapter 33 U.S.C. § 1365(a) (1)

.. . Section 1365(f) states:

For purposes of this section, the term "effluent

standard or limitation under this chapter" means (1)

effective July 1, 1973, an unlawful act under subsection (a)

of section 1311 of this title; (2) an effluent limitation or

other limitation under section 1311 or 1312 of this title; (3)

7In this case, DEQ did not translate the relevant water

quality criteria into effluent discharge limitations.

App-19

standard or performance under section 1316 of this title; (4)

prohibition, effluent standard or pretreatment standards

under section 1317 of this title; (5) certification under

section 1341 of this title; (6) a permit or condition thereof

issued under section 1342 of this title, which is in effect

under this chapter (including a requirement applicable by

reason of section 1323 of this title); or (7) a regulation

under section 1345(d) of this title.

Reading the statute in context, reveals the following struc-

ture:

§ 1365(a) allows citizen suits to enforce effluent lim-

itations;

§ 1365(f) defines effluent limitations as end-of-pipe

limitations and permit violations;

§ 1311 et seq. establish a NPDES permit system to

require end-of-pipe effluent limitations tailored to

achieve water quality standards.

33 U.S.C. § 1342 sets out the requirements for issuance of

NPDES permits. Section 1342 allows NPDES permits to

be issued which "apply, and insure compliance with, any

applicable requirements of 33 U.S.C. §§ 1311, 1312, 1316,

1317, and 1343," as well as 33 U.S.C. § 1318. 33 U.S.C.

§§ 1342(b)(1)(C) and 1342(b)(2)(A). These sections

require, inter alia, that pollutant discharges meet effluent-

limitations calculated to achieve water quality standards.

See 33 U.S.C. §§ 1311(b)(1)(C) and 1312(a). None of

these sections, however, require that a permittee directly

comply with water quality standards. Rather, it is the duty

App-20

of the permit-issuing authority to include in the permit end-

of-pipe effluent limitations that will ensure that water

quality standards are met. See Oregon Natural Resources

Council v. United States Forest Service, 834 F.2d 842, 850

(9th Cir. 1987).

The permit at issue in the instant case fails to set out such

limitations as to the CSOs. Since plaintiffs in the instant

case have not alleged violations of end-of-pipe effluent

limitations or of any other permit conditions contemplated

by 33 U.S.C. § 1342, they lack standing to sue under 33

U.S.C. § 1365.

The cases that have found standing to enforce reporting

requirements of NPDES permits are distinguishable from

the instant case because permits are required to include

reporting requirements pursuant to 33 U.S.C. §§ 1342 and

1318. See, e.g., Sierra Club v. Simkins Industries, Inc.,

847 F.2d 1109, 1115 n.9 (4th Cir. 1988) ("the reporting

requirements of the Act and Simkins’ NPDES permit are

essential elements of the Clean Water Act's enforcement

procedures"); see also Menzel v. County Utilities Corp.,

712 F.2d 91 (4th Cir. 1983).

A careful reading of the legislative history provides evi-

dence supporting both NWEA's and the district court's

interpretation of § 1365. As NWEA points out, in

explanation the meaning of § 1365(f), the Senate

Committee on Public Works implied that there were no

limits on the types of permit conditions that would be

enforceable. "In addition to violations of section 301(A)

citizens are granted authority to bring enforcement actions

for violations of . . . any condition of any permit issued

App-21

under section 402." 1972 U.S.C.C.A.N. at 3747. This

broad statement does not exist in a vacuum however. For

instance, earlier in the same document, a more limited

statement of the scope of citizen enforcement was made.

There the Comniittee stated that citizens could bring

enforcement actions "against those who violate effluent

standards or compliance orders." Jd. 3677. No mention is

made of general water quality conditions.

Moreover, when the broad statement of jurisdiction is read

in conjunction with the balance of the legislative history,

the backdrop of the 1972 Amendments ard the practical

considerations surrounding cases of this sort, it becomes

clear that Congress did not intend such a limitless grant of

jurisdiction when it enacted § 1365(f)(6).

The 1972 Amendments to the Clean Watcr Act reflect a

180 degree shift in the governments’ attempts to control

water pollution. Prior to 1972, the Federal Water Pollution

Control Act approached the job of protecting and

preserving the nation's waters through a program of

establishing and enforcing water quality standards. Under

the pre-1972 legislation, the federal government was

authorized to bring enforcement actions whenever it

determined that these standards were being violated.

Jeffrey M. Gaba, Federal Supervision of State Water

Quality Standards Under the Clean Water Act, 36 Vand. L.

Rev. 1167, 1178 (1983). This approach was soon found

wanting. Enforcement of the standards was almost non-

existent. Jd. at 1179 (only one enforcement action brought

before 1972).

There were philosophical dffficulties with this approach

App-22

which approved of pollution up until the point that it caused

damage. The Amendments took the position that all dis-

charges were impermissible unless specific authorization,

through the discharge permit system, was granted.

Whereas earlier legislation focused on the quality of the

receiving waters, the 1972 Amendments focused on the

quality and nature of the effluent being discharged into

those waters, with a goal of reducing and eventually

eliminating all discharges.

This change in emphasis to an act geared towards discharge

limits is reflected throughout the legislative history. See,

e.g., 1972 U.S.C.C.A.N. 3675 (“The legislation

recommended by the Committee proposes a major change

in the enforcement mechanism of the Federal water

pollution control program from water quality standards to

effluent limits.”). Although the 1972 Amendments retain

some role for water quality standards, see 33 U.S.C. §§

1312 and 1313, that role has changed. Prior to 1972, water

quality standards served as both the end goal and the

mechanism for achieving that goal. Under the 1972

Amendments, water quality standards remain the goal,

however discharge limits have taken over as the

mechanism. See 1972 U.S.C.C.A.N. 3675 ("the basis of

pollution prevention and elimination will be the application

of effluent limitations. Water quality will be a measure of

program effectiveness and performance, not a means of

elimination and enforcement"). Thus "[t}he new law must

build upon the existing foundation of water quality

standards and employ effluent limitations as a tool for the

achievement of those standards.” Hearings on H. R. 11896,

Before the Comm. on Public Works, 93d Cong. Ist Sess.

1180 (1972) (statement of Hon. William D. Ruckleshaus,

App-23

Admin., Environmenml Protection Agency), reprinted in 1

A Legislative History of the Water Pollution Control Act

Amendments of 1972 at 1180 (1972) (hereinafter

Legislative History); see also Sen. Consideration of the

Report of the Conference Committee, reprinted in

Legislative History at 171 (statement of Sen. Muskie) ("To

the extent the State may wish to continue an examination of

water quality in order to determine if more restrictive

effluent limits may be required, this section [1313] will be

useful.”); 33 U.S.C. § 1312; 1972 U.S.C.C.A.N. 3710

(“the Administrator is under a specific obligation to require

that level of effluent control which is needed to implement

existing water quality standards without regard to the limits

of practicability.”); id. ("It is not the intent of the

committee to in any way restrict the Administrator, or the

States from applying higher levels of control than best

practicable where necessary to achieve standards

established pursuant to the 1965 Act. . ."); id. at 3712

("To the extent that water quality standards can be used to

generate firm data on necessary effluent-limitations this

enforcement tool should be available.").

Congress also emphasized the primacy of discharge limits.

For instance Congressman Harsha of Ohio stated during

consideration of the conference committee bill that "those

individuals were wrong who stated that this [§ 1313] was

intended to be a weakening of the effluent limitations

approach and a continuation of the old water quality

standard based approach to water quality control which did

not prove as effective as it could have been." House

Consideration of the Rept. of the Conf. Comm. reprinted in

Legislative History at 246. In fact, to the extent that the

EPA's resources required prioritizing, Congress stated that

App-24

it "should assign secondary priority to this [§ 1313]

provision.” Sen. Consideration of the Report of the

Conference Committee, reprinted in Legislative History at

171 (statement of Sen. Muskie).

The Amendments also ameliorated evidentiary and

enforcement problems that were inherent in the earlier

legislation. The pre-1972 Act required the government to

prove that the defendant's discharges were the cause of

water quality violations in receiving waters that might be

subject to more than one discharger. See Gaba, supra at

1179. With discharge limitations, a more objective task

was given to the courts. Now in order for a court to

determine liability, it need only compare the quality and

quantity of the alleged polluter's discharge to the limits set

forth in the applicable NPDES permit. If the discharges

exceed the permit limits, the discharger has violated the

Act; if they do not, there is no violation or liability. Thus,

"[aJ]n alleged violation of an effluent control limitation or

standard, would not require reanalysis of technological in

[sic] other considerations at the enforcement stage. These

matters will have been settled in the administrative

procedure leading to the establishment of such effluent

control provision. Therefore an objective evidentiary

standard will have to be met by any citizen who brings an

action under this section.” 1972 U.S.C.C.A.N. at 3745.

The enforcement of a general water quality maintenance

condition in a permit, however, would require the court to

engage in just the subjective analysis of technological

considerations that Congress sought to avoid under § 1365.

Congress's emphasis on the evidentiary simplicity of

enforcement actions precludes the enforcement of water

quality standards that have not been translated into effluent

App-25

discharge limitations. Practical considerations also militate

in favor of an interptetation that does not allow for

jurisdiction in this case. Under a water quality based

enforcement scheme such as the pre-1972 Act, dischargers

faced problems in planning and regulating the legality of

their actions because this legality is dependent on natural

conditions such as the weather and third parties’

discharges. See Rodgers at 250. As a practical matter,

NWEA’s interpretation of § 1365 places dischargers such

as the City in the same untenable pre-1972 position. No

matter how much planning the City were to engage in, as

long as it discharges effluent from the CSOs even under the

auspices of a duly authorized permit, it is in danger of

being in violation of the Act. Given the extreme cost of

pollution abatement, industry and cities must have the

ability to plan for the future with the assurance that if they

remain within concrete permit parameters, they will remain

on the correct side of the law.

Congress’s statements in the legislative history that liability

determinations under the 1972 amendments would be

objective and non-technical, as well as the emphasis on the

translation of water quality standards into discharge

limitations convinces this court that the single reference to

“any condition of any permit” cannot be read as broadly as

NWEA suggests without eviscerating Congress’s intent to

restructure and revamp the statute. Citizens may still

object in the state courts to the terms of a proposed NPDES

permit when it is issued if they find that the effluent

limitations are insufficient to protect and preserve water

quality. ORS 183 484(2)(challenge to permit contents must

be brought within 60 days of issuance). Given the

legislative history and the practical problems that NWEA’s

App-26

interpretation of the statute would entail, the court finds

that under 33 U.S.C. § 1365, water quality standards are

unenforceable by way of a citizen suit unless they have

been translated into end-of-the-pipe effluent limitations.

Therefore, the district court’s holding is affirmed.

C. PROCEDURAL DETERMINATIONS

In the court below, Portland asserted two other

jurisdictional arguments upon which NWEA now seeks a

determination. Portland argued that 1) the case was moot

because of the changes in the 1991 permit; and 2) any ©

action was barred under 33 U.S.C. § 1319(g)(6) by DEQ’s

subsequent enforcement actions. Because NWEA claims

entitlement to attorney’s fees based on thealleged violations

of the old permit, and seeks to enforce the water quality

standards independently of the effluent limitations, a live

and genuine controversy remains, so the case is not moot.

Il. CONCLUSION

We AFFIRM the district court’s holdings that the 1984

permit covered the CSOs and that 33 U.S.C. § 1365(a)

does not confer jurisdiction for citizen suits to enforce

water quality standards when they are conditions of a

permit. Accordingly we decline to reach the questions of

mootness and whether 33 U.S.C. § 1319 bars jurisdiction.

PREGERSON, Circuit Judge, concurring in part and

dissenting in part:

I concur in all parts of the majority opinion except the

App-27

finding that Northwest Environmental Advocates

(“NWEA”) lacks standing to bring a citizen suit under the

Clean Water Act (“CWA”) § 505(a)(1) [33 U.S.C. §

1365(a)(1)], to enforce water quality standards contained in

NPDES permits. Portland holds an NPDES permit, and

the water quality standards are conditions of its permit.

Both the plain language of § 1365(a)(1) and case law

support a finding of citizen suit jurisdiction in this case,

and I am unpersuaded by the majority opinion’s reasoning

that legislative history and practical considerations preclude

jurisdiction. I therefore respectfully dissent.

As the majority opinion points out, the plain language of §

1365(a) authorizes citizens to enforce all permit conditions.

That section provides: “[A]ny citizen may commence a

civil action . . . (1) against any person . . . who is alleged

to be in violaiton of (A) an effluent standard or limitation

under [the Clean Water Act]. . . .” 33 U.S.C. §

1365(a)(1)(A). An effluent standard or limitation includes

“(2) an effluent limitation or other limitation under section

1311. . . or (6) a permit or condition thereof. . . .” 33

U.S.C. § 1365(f)(2), (f)(6) (emphasis added). Although

this language clearly contemplates citizen suits to enforce

“a permit or condition thereof,” the majority opinion

concludes that the section allows citizens to enforce only

those water quality standards that are translated into permit

effluent limitations.

To reach what I regard as an erroneous conclusion, the

majority opinion, I believe, misconstrues the effect of the

legislative history of the 1972 amendments to the CWA. I

agree that the 1972 CWA amendments reflect Congress’

dissatisfaction with the system of water quality standards,

App-28

but nowhere does Congress evidence an intent to preclude

the enforcement of water quality standards that have not

been translated into effluent discharge limitations. The fact

that Congress created a new, simpler enforcement method

based on effluent limitations does not mean that Congress

intended to foreclose citizen suit enforcement of water

quality standards. In fact, the legislative history convinces

me of just the opposite.

By introducing effluent limitations into the CWA scheme,

Congress intended to improve enforcement, not to supplant

the old system. In the legislative history, the Senate

Committee first outlined the dual purposes of water quality

standards: “The standards are intended to function. . . [a]s

a measure of performance . . . [and] to provide an avenue

of legal action against polluters. If the wastes discharged

by polluters reduce water quality below the standards,

actions may be begun against the polluters.” S. Rep. No.

414, 92nd Cong., 2nd Sess. 2 (1972), reprinted in 1972

U.S.C.C.A.N. 3668, 3671; 40 C.F.R. § 131.2 (1992) (dual

purposes). Next, the Committee expressed dismay over the

“almost total lack of enforcement” under the old system

that depended exclusively upon water quality standards.

1972 U.S.C.C.A.N. at 3672 (“[Ojnly one case has reached

the courts in more than two decades.”). Given Congress’

concern about non-enforcement, the majority opinion is

incorrect when it takes a narrow view of Congress’ broad

provision for “citizen participation in the enforcement of

control requirements and regulations established under [the

CWA]... .” Id. at 3745.

Moreover, citizen suit enforcement of water quality

standards is necessary to complement enforcement of

App-29

effluent limitations. Water qualtiy standards “often cannot

be translated into effluent limitations. .. .” Jd. at 3675.

For example, certain water quality standards cannot be

expressed quantitatively, such as those that apply in this

case to bacterial pollution, aesthetic conditions, and

objectionable matter (scum, oily sleek, foul odors, and

floating solids). See Or. Admin. R. 340-41-445(2)(f), (1),

(k). Even after the 1972 amendments, states may adopt

similar standards and express water quality criteria “as

constituent concentrations, levels, or narrative

statements... .” 40 C.F.R. 131.3(b)(1992).

Many discharges remain unregulated and primarily subject

to water quality standards, despite statutory deadlines for

achieving effluent limitations, 33 U.S.C. § 1311(b)(1)(A)

(1977 deadline for first-stage effluent limitations on all

point source discharges), § 1311 (b)(2) (West 1993 Supp.)

(1989 deadline for second-stage, more stringent controls).

Futhermore, in cases where effluent limitations do apply,

they serve only as national, minimum requirements; states

may adopt stricter, enforceable water quality standards and

limitations. 33 U.S.C. § 1370.

By interpreting § 1365(a)(1) to exclude citizen suit

enforcement of water qaulity standards that are not

translated into quantitative limitations, the majority opinion

immunizes the entire body of qualitative regulations from

an important enforcement tool.’ The rule is especially

'Also, the majority opinion’s interpretation

effectively attributes to Congress an intent to stall citizen suit

enforcement of permit terms that specify water quality

App-30

troubling in this case, because no effluent limitations cover

the discharges from Portland’s combined sewer overflows

(“CSOs”). Nor can citizens find consolation in their state

court remedy of objecting to the contents of a permit within

sixty days of its issuance, Or. Rev. Stat. 183 484(2).

Citizens groups such as NWEA might not wish to dispute

the issuance or contents of a permit, but to enforce the

permit’s terms. The majority opinion precludes them from

doing so. Qualitative standards are not too difficult for

courts to enforce. The majority’s decision eliminates the

only practicable way for citizens to challenge CSO

discharges.

The legislative history of the amendments neither dictates

nor supports this result. In fact, parts of the legislative

history reflect Congress’ intention to grant broad authority

for citizen enforcement, consistent with the statutory

language. In the legislative history, the Senate Committee

expressly stated that “/iJn addition to violations of section

301 (a) [26 U.S.C. § 1311, Effluent Limintations] citizens

are granted authority to bring enforcement actions for

violations of . . . any condition of any permit issued under

section 402 [26 U.S.C. § 1342].”. 1972 U.S.C.C.A.N. at

3747 (emphasis added). Also, the Committee explained

that it modeled the citizen suit provision on the analogous

standards. Congress set deadlines for promulgation of

effluent limitations, and therefore, must have anticipated a

five-year lag, 1972-1977, before universal applicability of

effluent limitations. Nothing in the legislative history

indicates that Congress intended to stall citizen enforcement

of permit terms until promulgation of effluent limitations.

PROF

App-31

Clean Air Act (“CAA”) provision that applies to air

pollution permit conditions.? Id. at 3745.

Finally, the majority opinion overlooks ample case law that

supports a finding of citizen suit jurisdiction in this case.

The Supreme Court has acknowledged citizen standing,

under § 1365(a)(1) and (f)(6), to enforce permit conditions

based on both EPA-promulgated eflluent limitations and

state-established standards. See E.P.A. v. California, 426

U.S. 200, 224-25, 96 S.Ct. 2022, 2033-34, 48 L.Ed.2d

578 (1976). By applying § 1365(f)(6), several courts have

held that there is jurisdiction under which citizens groups

may seek to enforce many kinds of permit conditions

besides effluent limitations. In fact, permit conditions that

courts commonly enforce under § 1365(a) are not effluent

limitations, but rather, requirements for retaining records

of discharge sampling and for filing reports. See, ¢.g.,

Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109,

1115 (4th Cir. 1988) (“Simkins’ reporting requirements are

expressly made conditons of its permit, and therefore

violations of these conditions, by operation of § 1365(f)(6),

are violations of an effluent standard or limitation of §

1365(a).”), cert. denied, 491 U.S. 904, 109 S.Ct. 3185,

2The Clean Air Act (“CAA”) provision authorizes

citizen suits for alleged violations of “an emission standard

or limitation under [CAA] . . . [,defined in relevant part as

an] emission limitation, standard of performance or emission

standard, . . . or any condition or requirement of a permit

under . . . [sections of CAA] . . . or under an applicable

[state] implementation plan.” 42 U.S.C. § 7604(a),

(f)(emphasis added).

App-32

105 L.Ed.2d 694 (1989). Other examples of enforceable

permit conditions include conditions relating to sewage

maintenance, Pymatuning Water Shed Citizens for a

Hygienic Env’t v. Eaton, 506 F. Supp. 902 (W.D. Pa.

1980), aff'd, 644 F.2d 995 (3rd Cir. 1981), and

construction schedules, Locust Lane v. Swatara Township

Auth. , 636 F. Supp. 534, 539 (M.D. Pa. 1986) (rejecting

defendant’s attempt “to impose a limitation on § 1365

where one is neither supported by the language nor the

legislative history”). Finally, citizens groups may enforce

even valid permit conditions that regulate discharges

outside the scope of the CWA, namely discharges that may

never reach navigable waters. Connecticut Fund for Env’t

v. Raymark Indus., Inc., 631 F.Supp. 1283, 1285 (D.

Conn. 1986).°

*When this Court and other courts have held that

citizens may not enforce water quality standards under §

1365(a)(1), they addressed standards that were not included

in a NPDES permit. Oregon Natural Resources Council v.

U.S. Forest Service, 834 F.2d 842 (9th Cir. 1987) (suit to

enforce water quality standards allegedly breached by

nonpoint sources, which are never regulated by NPDES

permits); McClellan Ecological Seepage v.Weinberger, 707

F. Supp. 1182, 1200 (E.D. Cal. 1988) (finding no citizen suit

jurisdiction existed, because “a state water quality standard

can constitute an effluent standard or limitation enforceable

under section 505 only if it has been incorporated into an

NPDES permit”); Montgomery Envtl. Coalition Citizens

Coordinating Comm. on Friendship Heights v. Washington

Suburban Sanitary Comm'n, 607 F.2d 378, 381 (D.C. Cir.

1979).

App-33

Because the statutory language, legislative history, and case

law demonstrate that citizens have authority to enforce

permit conditions stated in terms of water quality standards,

I would find the NWEA has standing.

App-34

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORTHWEST ENVRONMENTAL) No. 92-35044

ADVOCATES, A Non-Profit ) DC No.

Oregon Corporation; and NINA __) CV 91-339-PA

BELL, )

Plaintiffs-Appellants, )

v. ) ORDER AND

CITY OF PORTLAND ) OPINION

Defendant-Appellee. )

June 7, 1995

PREGERSON, Circuit Judge:

Northwest Environmental Advocates and Nina Bell

(“NWEA”) appeal the district court’s judgment in favor of

Portland on their claims that the City is violating the Clean

Water Act (“CWA”), 33 U.S.C. § 1251 et seq. On April

16, 1991, NWEA filed suit in the district court alleging that

Portland’s practice of discharging raw sewage during times

of precipitation from 54 outfall points was not covered by a

permit and that the practice had caused and was continuing

to cause violations of Oregon’s water quality standards.

After a trial on the written record, the district court held

that (1) the contested discharge points were covered by

Portland’s pollution permit, and (2) the court lacked

jurisdiction to consider NWEA’s water quality violation

claims.

In Northwest Environmental Advocates v. City of Portland,

11 F.3d 900 (9th Cir. 1993) (Northwest), we affirmed. We

eee sey Sata

App-35

held that the contested discharge points were covered by

Portland’s pollution permit, id. at 903-06, and we held that

Northwest Environmental Advocates lacked standing to

bring a citizen suit under § 505(a)(1) of the Clean Water

Act, 33 U.S.C.1365(a)(1), to enforce water quality

standards contained in Portland’s permit. Jd. at 906-11.

On December 28, 1993, NWEA filed a petition for

rehearing with suggestion for rehearing en banc. While

this petition was still pending, the Supreme Court decided

PUD No. 1 of Jefferson County v. Washington Department

of Ecology, 114 S. Ct. 1900 (1994) (Jefferson County).’

Jefferson County cast into considerable doubt our holding

in Northwest that Citizens do not have standing under the

Clean Water Act to enforce water quality standards unless

they have been translated into end-of-pipe effluent

limitations. In light of Jefferson County and upon

reconsideration of our prior opinion in Northwest, we now

vacate that opinion, 11 F.3d at 900-913, and issue the

following opinion.

I. BACKGROUND

A. The Portland Sewage Treatment System

At issue is the operation of the Portland sewer system.

' On April 25, 1994, the case failed to receive a

majority of votes for consideration en banc. The panel then

resumed control of the case. However, before the panel

issued the final 5.4(b) Order, the Supreme Court decided

Jefferson County.

App-36

Portland operates a sewage treatment system that includes a

network of combined sewage and stormwater pipes.

Although the construction of these combined sewer pipes

was discontinued in 1962, approximately 70% of the City’s

sewers remain combined sewers. Supp. E.R. 21. The

effluent flowing in the system ideally is intercepted and

transported to the Columbia Boulevard Treatment Plant

where it is treated and then discharged into the Columbia

River through two outfalls (Nos. 001 and 002). The

interceptors can carry only “‘three times [the] average dry

weather flow’” of effluent to the treatment plan.

Sunnarborg Aff., Supp. E.R. 21. When the flow exceeds

the plant’s capacity, as can occur during periods of

precipitation, the effluent is released untreated through a

system of combined sewer overflow (CSO) outfalls in what

is termed a CSO event. There are between 50 and 80 CSO

events every year in Portland. E.R. 216; see also Bureau

of Environmental Services, City of Portland, Columbia

Slough Planning Study Background Report (1989) (there

are between 67 and 79 CSO events per year in the

Columbia Slough).

Portland has 54 CSO outfalls; 12 drain into the Columbia

Slough and 42 drain into the Willamette River. These

waterways and their environs are used by Portland residents

for recreation, including water contact activities such as

boating. The release of untreated sewage into such public

waters can present health risks. See National Combined

Sewer Overflow Control Strategy, 54 Fed. Reg. 37370,

37371 (1989) (“CSOs have been shown to have severe

adverse impacts on human health under certain

conditions.”). Appellants have supplied both anecdotal and

scientific evidence of the polluted nature of the Willamette

EN Pe a ote Ale sable LSP) LEE MAA Ie

DEE FEN

App-37

River and the Columbia Slough, especially during and

immediately after CSO events. See, e.g., Portland’s

Response to NWEA’s Interrogatories, E.R. 119; Thutt

Aff., E.R. 159-178; Pratt Aff., E.R. 20.

Abatement of CSO events is not easy. It has been

estimated that to solve the problem in Portland alone will

cost between $500 million and $1.2 billion dollars. E.R.

221. Estimates for the entire nation are between $70

billion and $109 billion dollars. Environmental Groups

Call for Effort to Deal with Combined Sewer Problems, 23

Env. Rptr. (BNA) 13 (1992) (upgrades could start at

between $70 and $80 billion dollars); Combined Sewer

Overflow Problems Demand New Approach, Local

Officials Say, 20 Env. Rptr. (BNA) 1939 (1990) (costs

could be as high as $109 billion).

B. Proceedings in the District Court

On February 1, 1991 NWEA gave written notice to

Portland, the EPA Administrator, the State of Oregon, and

the EPA Regional Administrator of its intent to file suit in

the district court challenging the legality of the CSO

discharges. Complaint, E.R. 9. In April 1991, after the

required 60 day notice period, NWEA filed this action.

The crux of the NWEA complaint was that the 54 CSO

outfalls being used regularly by the City were not covered

by the City’s 1984 National Pollution Discharge

Elimination System (NPDES) permit. Because unpermitted

discharges of pollutants are illegal, NWEA argued the City

was violating the CWA. Even if the CSOs were covered

by the permit, NWEA argued that the discharges violated

App-38

Oregon water quality standards and therefore violated a

condition of the Permit. These violations were ongoing

and likely to continue. NWEA prayed for injunctive relief

and civil penalties. Complaint, E.R. 10-11.

The 1984 permit was to expire in July 1989. However it

remained in effect until Portland and the Oregon

Department of Environmental Quality (DEQ) were able to

complete the renewal process and agree on the terms of a

new permit. DEQ forwarded a draft of a proposed renewal

permit to Portland in December 1990. This draft permit

required the City to “meet water quality standards at all

discharge points, including CSOs, ... .” Because

Portland could not meet the five year time table set forth in

the proposed renewal permit, id., the parties determined

that a compliance order separate from the renewal permit,

and requiring eventual abatement of ali CSO events, was

appropriate. After a period of Notice and Comment,

Portland and the DEQ came to an agreement in August

1991. Under that settlement, Portland’s new permit

specifically listed the CSOs as permitted discharge points.

In addition to the permit, the parties entered into a

stipulation and final order (SFO) in which Portland agreed

to replace the CSO system within the next 20 years.

Once these negotiations had been completed, Portland filed

a motion to dismiss and the parties filed cross-motions for

summary judgment. The court bifurcated the proceedings;

first it would address whether Portland could be held liable

National Pollution Elimination Discharge Permits in

Oregon are issued by DEQ.

per nN

App-39

for violations of the CWA, and then if necessary, determine

whether violations had occurred and impose any necessary

penalties. The parties stipulated to a trial of the liability

phase on the summary judgment submissions, allowing the

court to decide questions of fact as well as questions of

law. Amended Opinion, E.R. 73.

After reviewing the submissions the district court issued an

opinion and judgment. It later filed an amended opinion

which was essentially the same as the original. The court

found that Portland’s 54 CSOs were covered by the 1984

NPDES permit, and thus that the City was not in violation

of the Act for allowing unpermitted discharges. It also

rejected NWEA’s claim that Portland would nonetheless be

liable for violating Oregon’s water quality standards

because the CWA did not confer federal jurisdiction to

entertain citizen suits to enforce state water quality

standards.

ll. ANALYSIS

A. Does the 1984 Permit Cover the CSOs?

In the court below, NWEA argued that Portland had

violated and continued to violate the CWA by discharging

through unpermitted outfalls. The district court found

otherwise, holding that the relevant NPDES discharge

permit authorized CSO events under specific circumstances.

NWEA asserts that the district court erred in so interpreting

the permit.

We review the district court’s interpretation of the 1984

permit as we would the interpretation of a contract or other

App-40

legal document. When reviewing a district court’s

interpretation of such a writing, the court reviews de novo

the determination of whether it is ambiguous. Jn re U.S.

Fin. Sec. Litig., 729 F.2d 628, 632 (9th Cir. 1984).

Interpretation of an unambiguous writing is also a question

of law subject to de novo review. Culinary & Service

Employees Union, Local 555 v. Hawaii Employee Ben.

Admin. Inc., 688 F.2d 1228, 1230 (9th Cir. 1982). If the

court must look to extrinsic evidence in order to interpret a

writing, its findings of fact are reviewed for clear error.

U.S. Fin. Sec., 729 F.2d at 632; Culinary & Service

Employees Union, 688 F.2d at 1230; In re Agricultural

Research & Technology Group, Inc., 916 F.2d 528, 537

(9th Cir. 1990).

NWEA argued in the court below that the 1984 permit

covered only two point sources, outfalls 001 and 002 from

the treatment plant.? The 1984 permit expressly “covers”

only two points sources, outfalls 001 and 002 from the

treatment plant. These outfalls are listed on the first page

of the permit as the “SOURCES COVERED BY THIS

PERMIT.” E.R. 222. The 54 CSOs are not listed in this

section. The first page of the permit also states that the

receiving waterway for these discharges is the Columbia

- River. The Willamette River and the Columbia Slough are

not mentioned.

Immediately below the section listing “SOURCES

COVERED,” the permit provides a description of the

Effluent from outfalls 001 and 002 has been treated

before it is discharged into the Columbia River.

APL it NBL AR PEI Ao wel T oe, HT Oe < ihe a

App-41

activities that are covered by the permit. This section,

“PERMITTED ACTIVITIES,” states that Portland is

authorized to “operate a waste water collection, treatment,

control and disposal system and discharge to public waters

adequately treated waste waters only from the authorized

discharge point or points established in Schedule A .. . Ae

E.R. 222 (emphasis added). Schedule A provides the

effluent limitations for outfalls 001 and 002. More

importantly, however, it provides that:

The permittee shall provide interception of at least three

times the dry weather flow before discharge shall occur at

any diversion structure. The overflow from these

diversion structures shall be minimized and/or eliminated

as much as practicable during the water recreation season

(June 1 to October 31).‘

E.R. 223. Thus, on the face of the permit it appears that

CSO events were considered to be a “permitted activity.”

Finally, Schedule C provides that the City must “continue

to work toward the separation of sanitary sewage and storm

water in presently developed areas in which this method is

cost effective.” E.R. 224.

‘The parties do not dispute that “diversion structure”

refers to the CSOs. In earlier permits, the 54 CSOs were

listed in this provision of the permit. See Supp. E.R. 13

(1979 permit, “Discharge at overflow points 003 through 066

is permitted when the flow at diversion structures exceeds

three times the dry weather flow.”); Supp. E.R. 2 (1974

permit - same).

App-42

NWEA contends that the court should only heed the first

portion of the permit listing covered sources.° Because the

CSOs are not specifically listed on page one as permitted

sources, NWEA argues, they must not have been

encompassed by the permit and are therefore illegal. To

follow this reasoning would require the court to read the

references to diversion structures out of the permit

altogether. The limitations on the frequency of CSO events

and the requirement that Portland work towards upgrading

its sewer system would then constitute mere surplusage.

The 1984 permit is clear on its face in permitting CSO

events under specified conditions. The description of

permitted activities specifically allows Portland to operate a

sewage system and to discharge through two separate sets

of discharge points, those listed on page one as authorized

discharge points, and those described and listed on

Schedule A.

The extrinsic evidence presented to the district court only

strengthens this conclusion. The parties each offered

evidence, in the form of affidavits and other documentary

evidence, to support their respective understandings of the

1984 permit. NWEA relied mainly on four documents to

‘NEA attempts to downplay the importance and

placement of the references to diversion structures, implying

that they are somehow a part of the fine print. In reality

however, the limitations on the frequency of CSO events

appears in normal sized type on page two of the permit,

directly below the effluent limits for discharges from outfalls

001 and 002. See, E.R. 223.

ice

<< e

A a ec ia tt sii abana AS

mee mda

App-43

support the position that the CSOs were not, and had never

been, permitted. The first was a letter from W.C. Gaffi,

Portland’s Chief Engineer, to DEQ in 1988. Gaffi stated

that “the City supports ODEQ’s position to permit the CSO

outfalls through a modification to the existing treatment

permit. This approach should achieve the same goal as

individual CSO permits and reduce the administrative cost

of doing so.” E.R. 278. The second document was an

October 1990 memorandum from two members of the

Portland Bureau of Environmental Services. In this memo,

Linda MacPherson and Dave Kliewer indicated the need to

set up a “discussion to determine if the CSOs are going to

be permitted or not?” E.R. 279. The third is an undated

memorandum in which a DEQ employee wrote that “the

potential exists for permitting both the storm and combined

sewer discharges.” E.R. 191. NWEA argues that these

three documents imply that the CSOs were not covered

under the 1984 permit, because if they were, there would

be no need to address including them in future permits.

Finally, NWEA offered a DEQ policy statement entitled

“Strategy for Regulating Combined Sewer Overflows.”°

The report states that “none of these outfalls [the CSOs] are

covered by a permit, however, all are proposed to be

addressed in the Portland-Columbia Blvd STP permit

renewal.” E.R. 208. NWEA argues that this statement

proves that DEQ had not permitted the CSOs in the 1984

’This February 1991 document appears to have been

prepared in response to the EPA’s National Combined Sewer

Overflow Control Strategy. See 54 Fed. Reg. 37370 (Sept. 8,

1989).

App-44

permit. Portland, however, offered an affidavit by the

author of the report to explain the statement. Barbara

Burton explained that the quoted text did not mean that

Portland’s CSOs were not covered by an NPDES permit,

and therefore were illegal. Instead, it was intended to

convey that “none of the outfalls were individually listed

with effluent limitations in Portland’s 1984 NPDES

permit.” E.R. 281 (emphasis in original).

Barbara Burton’s impression of the scope of the Portland

NPDES permit was shared by Harold L. Sawyer, formerly

the Water Quality Division Administrator for DEQ. E.R.

282. Sawyer stated in his affidavit that “Portland’s entire

sewer system, including CSO outfalls, was permitted by

Portland’s 1984 NPDES permit and by its prior NPDES

permits.” E.R. 283. According to Sawyer, DEQ knew,

and always had known, that the Portland sewer system

operated through a system of CSOs and treatment plants.

Id. Moreover, “if DEQ had considered combined sewer

overflows to be outside of Portland’s NPDES permit, as

Water Quality Division Administrator for DEQ [he] would

have proposed a specified program and schedule for

treatment or elimination of such discharges for

incorporation in the permit or in a separate compliance

order.” Jd. These are the steps that DEQ took in 1991.

Thus, “DEQ understood that Portland would continue to

operate its combined sewer system as it had been operating

the system prior to the existence of the NPDES permitting

program, to prevent dry weather combined sewer overflows

except during abnormal storm events.” Jd. at 285.

This position is repeated in the 1991 SFO. DEQ stated that

“as a matter of policy the Department [DEQ] did not

é

. og eS ae te renee?

Rat aes,

Be a a ear ‘

App-45

always list CSO discharge points in an NPDES permit but,

in many instances, issued permits for an entire sewer

system. . . [Portland’s] 1984 NPDES permit is a permit for

the sewer system, which includes CSO outfalls, but did not

contain specific effluent limitations for CSOs.” E.R. 260-

61.

The district court, having reviewed these conflicting

statements, found Portland’s interpretation to be persuasive.

The court recognized the import of the Gaffi letter, but

determined that it was “not persuasive enough in the face of

the common sense reading of the permit, which when

examined in context with the older permit and when

construed to give the language limiting discharges meaning,

directs a conclusion that the 1984 permit covered the CSO

discharges.” E.R. 83. The Sawyer and Burton affidavits

were more persuasive because their explanations of the

1984 permit comported with the language of the permit

itself. Id.

NWEA argues that, notwithstanding the extrinsic evidence,

_under the rules of contract interpretation the court must

find that the CSOs were not covered by the 1984 permit.

Courts should, if possible, interpret a contract so that its

terms will not be illegal. See Corbin, Contracts§546 at 169

(1960). This rule is advisory and should not be applied

blindly to the detriment of the parties’ intentions. “[A]

specific provision in an otherwise valid contract should not

be given a meaning that would have a legal effect that the

court is convinced the parties did not intend, even though

any alternative meaning will cause the provision to have no

legal effect whatever.” Id.

App-46

Under the regulations promulgated pursuant to § 1342 of

the Clean Water Act, all NPDES permits should establish

technology-based effluent limitations for all permitted point

sources. 40 C.F.R. 122.44(a). Although technically the

permit should have established effluent limitations for the

CSOs, it appears that the parties intended to omit such

requirements. The district court was presented with

sufficient evidence from which it could determine that

DEQ, as well as Portland, intended this allegedly unlawful

interpretation. EPA approved the terms of the permit,

including the absence of effluent limitations for the CSOs,

even though the existence of the CSOs was clear on the

permit’s face. Moreover, prior to 1989, it appears that

many state permitting bodies believed that CSO outfalls

could be permitted without being subjected to effluent

limitations. See National Combined Sewer Overflow

Control Strategy, 54 Fed. Reg. 37370, 37371 (1989)

(proposed regulations to “control effluents from combined

systems which are not regulated under the sanitary system

standards nor as discharges from separate storm sewer

regulations”). Cf., Montgomery Environmental Coalition

v. Costle, 207 U.S. App. D.C. 233, 646 F.2d 568, 592

(D.C. Cir. 1980) (interpreting permit as allowing limited

CSO events without effluent limitations).

NWEA next argues that the district court erred by failing to

interpret the permit in the public interest. This is “a rule of

construction rather than one of interpretation, one that for

reasons of public policy requires the court to give to a

contract that legal operation that is of public advantage,

when a choice between that and a less advantageous

operation is reasonably open.” Corbin, supra § 550 at

196. In NWEA’s view, the 1984 permit should be

App-47

interpreted as not allowing the CSOs because “clearly it is

not in the public interest to construe a permit so as to

authorize the gross pollution of public waterways.” Reply

at 7. The alternative to the CSOs is a total revamping of

the Portland sewer system, the cost of which has been

estimated at as much as 1.2 billion dollars. E.R. 221.

Moreover, until such renovations could be completed, if the

excess effluent during storms was not released through the

CSOs the effluent would “flood [ ] streets and basements.”

Sunnarborg Aff., Supp. E.R. 21. Although water pollution

is unfortunate, it beggars credulity to argue that this

alternative is so clearly more in the public interest than the

CSO events.

The district court’s findings are not clearly erroneous.

There was significant evidence from DEQ, the permit

author, to indicate that the CSOs were covered in the 1984

permit. Moreover, DEQ’s interpretation, that the CSOs

were permitted but not separately listed, does not directly

conflict with NWEA’s offered extrinsic evidence. Given

Sawyer’s and Burton’s explanations, Gaffi and

MacPherson’s concerns about permitting the CSOs can be

explained as concern over whether the CSOs should be

expressly listed on new permits. We, accordingly, affirm

the district court’s finding that the permit authorized limited

discharges from the CSOs.

B. Does NWEA Have a Cause of Action for Water Quality

Violations?

NWEA argues that the district court erred in finding that it

did not have jurisdiction over a citizen suit for the

enforcement of the water quality maintenance provision of

App-48

the NPDES permit. In the court below NWEA argued that,

whether or not the CSOs were specifically permitted under

the 1984 NPDES permit, Portland had violated and

continued to violate conditions of both the 1984 and 1991

NPDES permits. Specifically, NWEA alleged that

Portland’s CSO events violated a permit condition

prohibiting any discharges that would violate Oregon water

quality standards. The 1984 permit held, as a condition in

Schedule A, that “notwithstanding the effluent limitations

established by this permit, no wastes shall be discharged

and no activities shall be conducted which will violate

Water Quality Standards as adopted in OAR 340-41-445

except in the following defined mixing zone . . .” 1984

Permit, E.R. 223. The mixing zone was defined as a 100

foot radius around the discharge point. Jd. The 1991

permit contained similar limitations but eliminated the

mixing zone provision. It also expressly applied the

condition to the CSOs. See E.R. 235 and compare with

E.R. 223. NWEA offered declarations and scientific

reports that it argued establish continuing violations of the

water quality standards in the waters surrounding the CSOs

after CSO events. See, e.g., Portland’s Response to

interrogatories, E.R. 119 (failure to meet fecal coliform

standards); Thutt Aff., E.R. 164 (“not possible to have any

CSO event that would not exceed the DEQ’s fecal coliform

standard”); Rosolie Aff., E.R. 153-54.

The district court never reached the question of Portland’s

liability for violations of this permit condition. Instead, the

district court held that § 505 of the Clean Water Act, 33

U.S.C. § 1365, did not grant federal jurisdiction for the

citizen enforcement of water quality violations, “because

water quality standards do not equal ‘effluent standards or

App-49

limitations under this chapter.’” E.R. 84. The court

concluded that violations of water quality standards may be

actionable “only if they are incorporated into an NPDES

permit through effluent limitations.” E.R. 86. Because the

plain language of CWA § 505, the legislative history, and

case law support a finding of citizen suit jurisdiction in this

case, we reverse on this issue.

[6] The plain language of CWA § 505 authorizes citizens to

enforce all permit conditions. That section provides:

“[A]ny citizen may commence a civil action . . . (1) against

any person . . . who is alleged to be in violation of (A) an

effluent standard or limitation under [the Clean Water Act]

....” 33 U.S.C. § 1365(a)(1)(A). An effluent standard or

limitation includes “(2) an effluent limitation or other

limitation under section 1311 . . . or (6) a permit or

condition thereof. . . .” 33 U.S.C. § 1365(f)(2), (f)(6)

(emphasis added). This language clearly contemplates

citizen suits to enforce “a permit or condition thereof”.

Portland holds a National Pollutant Discharge Elimination

System (NPDES) permit,’ and the water quality standards

are conditions of its permit.

Portland argues that § 505 allows citizens to enforce only

those water quality standards that are translated into

effluent limitations. To support this argument, Portland

reasons that the effluent limitations, which were imposed

7As noted above, the NPDES permit program makes

it unlawful for any person to discharge a pollutant without

obtaining an NPDES permit from the State and complying

with its terms. 33 U.S.C. § 1342.

App-50

by the 1972 amendments to the CWA, effectively displaced

water quality standards as the primary means of regulating

pollution. Portland explains that Congress retained water

quality standards as the ultimate goal of polliution control,

but sought to achieve this goal through end-of-the-pipe

limitations.

Portland misconstrues the effect of the legislative history of

the 1972 amendments to the CWA. To be sure, the 1972

CWA amendments reflect Congress’ dissatisfaction with the

system of water quality standards. But nowhere does

Congress evidence an intent to preclude the enforcement of

water quality standards that have not been translated into

effluent discharge limitations. The fact that Congress

created a new, simpler enforcement method based on

effluent limitations does not mean that Congress intended to

foreclose citizen suit enforcement of water quality

standards. In fact, the legislative history indicates just the

opposite.

By introducing effluent limitations into the CWA scheme,

Congress intended to improve enforcement, not to supplant - -- -

the old system. In the legislative history, the Senate

Committee first outlined the dual purposes of water quality

standards: “The standards are intended to function . . .[a]s

a measure of performance . . . [and] to provide an avenue

of legal action against polluters. If the wastes discharged

by polluters reduce water quality below the standards,

actions may be begun against the polluters.” S. Rep. No.

414, 92nd Cong., 2nd Sess. 2 (1972), reprinted in 1972

U.S.C.C.A.N. 3668, 3671; 40 C.F.R. § 131.2 (1992) (dual

purposes).

App-51

Next, the Committee expressed dismay over the “almost

total lack of enforcement” under the old system that

depended exclusively upon water quality standards. 1972

U.S.C.C.A.N. at 3672 (“[O]nly one case has reached the

courts in more than two decades.”). Given Congress’

concern about non-enforcement, Portland erroneously takes

a narrow view of Congress’ broad provision for “citizen

participation in the enforcement of control requirements

and regulations established under [the CWA] ... .” Jd. at

3745.

The Senate Committee expressly stated that “[i]n addition

to violations of section 301(a) [26 U.S.C. § 1311, Effluent

Limitations] citizens are granted authority to bring

enforcement actions for violations of . . . any condition of

any permit issued under section 402 [26 U.S.C. § 1342].”

1972 U.S.C.C.A.N. at 3747 (emphasis added).* Also, the

Committee explained that it modeled the citizen suit

provision on the analogous Clean Air Act (“CAA”)

provision that applies to air pollution permit conditions.’

® See also Middlesex County Sewerage Authority v.

National Sea Clammers, 453 U.S. 1, 16-17 (1981)

(recngnizing that the “broad category of potential plaintiffs”

envisioned by Congress in the citizen suit provision

“necessarily includes . . . plaintiffs seeking to enforce [the

CWA)] as private attorneys general”).

® The Clean Air Act (“CAA”) provision authorizes

citizen suits for alleged violations of “an emission standard

or limitation under [CAA] . . . [, defined in relevant part as

an ] emission limitation, standard of performance or

App-52

Id. at 3745. Thus, 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 supports our view that Congress intended

to confer citizens standing to enforce water quality

standards. Most notably, in PUD No. 1 of Jefferson

County v. Washington Department of Ecology, 114 S. Ct.

1900, 1910-14 (1994) (Jefferson County), the Supreme

Court held that the Clean Water Act allows States to

enforce the broad narrative criteria contained in water

quality standards. In Jefferson County, a county which

proposed to build an electricity-generating facility on a

river challenged a minimum stream flow condition

established by the State.'° Although the county did not

emission standard, . . . or any condition or requirement of a

permit under . . . [sections of CAA] . . . or under an

applicable [state] implementation plan.” 42 U.S.C. §

7604(a), (f) (emphasis added).

'° Section 401(d) of the Clean Water Act, 33 U.S.C. §

1341(d), authorizes the State to impose conditions for

certification of a proposed project based upon several

enumerated sections of the Clean Water Act. Although

CWA § 303, 33 U.S.C. § 1313, is not one of the statutory

provisions listed in CWA § 401(d), the Supreme Court

concluded that States may condition § 401(d) certification

upon compliance with § 303. The Court reasoned that

because § 401(d) lists § 301 as a provision with which an -

applicant must comply, and § 301 in turn incorporates §

App-53

contest the State’s authority to set limitations designed to

ensure compliance with state water quality standards

adopted under CWA § 303, the county argued that § 303

requires the mentation of “specific numerical criteria.” Id.

at 1910. The county contended that the State may not

require it to operate the dam in a manner consistent with a

“designated use,” which is a qualitative requirement of the

§ 303 water quality standards. Id.

The Court rejected the county’s argument, and held that the

State may require a permit applicant to comply with the

303 by reference, “state water quality standards adopted

pursuant to§303 are among the ‘other limitations’ with

which a State may ensure compliance through the§401

certification process.” Jefferson County, 114 S. Ct. at

1909. Section 303 requires that any water quality standard

adopted by the State “shall be established taking into

consideration their use and value for public water supplies,

propagation of fish and wildlife, recreational purposes, and

agricultural, industrial, and other purposes.” 33

U.S.C.§1313(€)(2).

The State issued a§401 water quality certification imposing

a variety of conditions on the project, including a minimum

stream-flow requirement of between 100 and 200 cubic feet

per second. The State determined that construction and

operation of the project as planned would interfere with one

of the designated uses of the river, viz., salmonid

migration, rearing, spawning, and harvesting, but that the

minimum stream flow requirement would ensure

compliance with the§303 water quality standards.

App-54

qualitative designated uses requirement. Jd. The Court

explained that under the literal terms of CWA § 303(c)(2),

a water quality standard must “consist of the designated

uses of the navigable waters involved and the water quality

criteria for such waters based upon such uses.” /d. Thus,

the Court concluded that a project that does not comply

with a designated use of the water does not comply with the

applicable water quality standards. Jd. The Court also

explained that CWA § 401(d), which provides for State

certification of projects, explicitly authorizes “any...

limitations . . . necessary to assure that [the applicant] will

comply with any . . . limitations under . . . [CWA § 303]

... and any other appropriate requirement of state law.”

Id.

By its holding, the Court expressly rejected the county’s

argument that designated use requirements are “too open-

ended” to be enforceable and that the Clean Water Act only

contemplates enforcement of the more “specific and

objective” numerical criteria:

[The county’s] argument is belied by the open-ended

nature of the criteria themselves . . . criteria are often

expressed in broad, narrative terms. ... In fact, under

the Clean Water Act, only one class of criteria, those

governing “toxic pollutants listed pursuant to section

1317(a)(1)” need be rendered in numerical form... .

[The county’s] attempt to distinguish between uses and

criteria loses much of its force in light of the fact that the

Act permits enforcement of broad, narrative criteria based

on, for example, “aesthetics.”

Id. at 1911 (emphasis added).

App-55

The coumy’s losing argument in Jefferson County is very

similar to the argument advanced by Portland in the instant

case. Portland argues that citizens may not enforce the

broad narrative conditions of state water quality standards,

but may enforce only those conditions that have been

translated into numeric effluent limitations.

We disagree with Portland’s contention that Jefferson

County is inapposite to the issue before us. Even though

Jefferson County involved a state’s authority to impose

conditions under CWA § 401, whereas the present

litigation involves citizen suit enforcement of CWA § 402

conditions, both the § 401 certification process and the §

402 permit process require applicants to comply with CWA

§ 301. As noted above, § 301 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 CWA § 303 water quality standards, nothing

in that language of the Clean Water Act, the legislative

history, or the implementing regulations restricts citizens

from enforcing the same conditions of a certificate or

permit that a State may enforce. To the contrary, as

demonstrated above, these sources uniformly support broad

citizen enforcement authority, including the authority to

enforce water quality standards.

In addition to Jefferson County, miamerous cases support a

finding of citizen suit jurisdiction in this case. The

Supreme Court has acknowledged citizen standing under

CWA § 505(a)(1) and (f)(6), to enforce permit conditions

based on both EPA-promulgated effluent limitations and

App-56

state-established standards. See E.P.A. v. California, 426

U.S. 200, 224-25 (1976). By applying § 505(f)(6), several

courts have hed that citizens groups may seek to enforce

many kinds of permit conditions besides effluent

limitations. In fact, permit conditions that courts

commonly enforce under § 505(a) are not effluent

limitations, but rather, requirements for retaining records

of discharge sampling and for filing reports. See e.g.,

Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109,

1115 (4th Cir. 1988) (“Simkins’ reporting requirements are

expressly made conditions of its permit, and therefore,

violations of these conditions, by operation of § 1365 (f)(6)

[CWA § 505(f)(6)], are violations of an effluent standard or

limitation of § 1365(a).”), cert. denied, 491 U.S. 904

(1989). Other examples of enforceable permit conditions

include conditions relating to sewage maintenance,

Pymatuning Water Shed Citizens for a Hygienic Env’t v.

Eaton, 506 F. Supp. 902 (W.D. Pa. 1980), aff'd, 644 F.2d

995 (3rd Cir. 1981), and construction schedules, Locust

Lane v. Swatara Township Auth. , 636 F. Supp. 534, 539

(M.D. Pa. 1986) (rejecting defendant’s attempt “to impose

a limitation on § 1365 where one is neither supported by

the language nor the legislative history”). Finally, citizens -

groups may enforce even valid permit conditions that

regulate discharges outside the scope of the Clean Water

Act, namely discharges that may never reach navigable

waters. Connecticut Fund For Env’t v. Raymark Indus.,

Inc., 631 F. Supp. 1283, 1285 (D. Conn. 1986)."'

'! When this Court and other courts have he _—_at

citizens may not enforce water quality standards under §

505(a)(1), they addressed standards that were not included in

App-57

[8] Citizen suits to enforce water quality standards

effectuate complementary provisions of the CWA and the

underlying purpose of the statute as a whole. Citizen suit

enforcement of water quality standards is necessary to the

effective enforcement of effluent limitations. Congress

recognized that water quality standards “often cannot be

translated into effluent limitations .. . .” 1972

U.S.C.C.A.N. at 3675. For example, certain water quality

standards cannot be expressed quantitatively, such as those

that apply in this case to bacterial pollution, aesthetic

conditions, and objectionable matter (scum, oily sleek, foul

odors, and floating solids). See Or. Admin. R. 340-41-

445(2)(f), (1), (k). Even after the 1972 amendments, states

may adopt similar standards and express water quality

criteria “as constituent concentrations, levels, or narrative

statements... .” 40 C.F.R. 131.3(b) (1992).

a NPDES permit. Oregon Natural Resources Council v. U.S.

Forest Service, 834 F.2d 842 (9th Cir. 1987) (suit to enforce

water quality standards allegedly breached by nonpoint

sources, which are never regulated by NPDES permits);

McClellan Ecological Seepage v. Weinberger, 707 F. Supp.

1182, 1200 (E.D. Cal. 1988) (finding no citizen suit

jurisdiction existed, because “a state water quality standard

can constitute an effluent standard or limitation enforceable

under section 505 only if it has been incorporated into an

NPDES permit”) Montgomery Envtl. Coalition Citizens

Coordinating Comm. on Friendship Heights v. Washington

Suburban Sanitary Comm’n, 607 F.2d 378, 381 (D.C. Cir.

1979).

App-58

Many discharges remain unregulated and primarily subject

to water quality standards, despite statutory deadlines for

achieving effluent limitations, 33 U.S.C. § 1311 (b)(1)(A)

(1977 deadline for first-stage effluent limitations on all

point source discharges), § 1311(b)(2) (West 1993 Supp.)

(1989 deadline for second-stage, more stringent controls).

Furthermore, in cases where effluent limitations do apply,

they serve only as national, minimum requirements; states

may adopt stricter, enforceable water quality standards and

limitations. 33 U.S.C. § 1370.

By interpreting § 505 to exclude citizen suit enforcement of

water quality standards that are not translated into

quantitative limitations, Portland would have us immunize

the entire body of qualitative regulations from an important

enforcement tool.'? Such a result would be especially

troubling in this case, because no effluent limitations cover

the discharges from Portland’s combined sewer overflows

(“CSOs”).

'2 Congress set deadlines for promulgation of effluent

limitations, and therefore, must have anticipated a five-year

lag, 1972-1977, before universal applicability of effluent

limitations. However, nothing in the legislative history

indicates that Congress intended to stall citizen enforcement

of permit terms until promulgation of effluent limitations.

'S Nor can citizens find consolation in their state court

remedy of objecting to the contents of a permit within sixty

days of its issuance, Or. Rev. Stat. 183, 484 (2). Citizens

groups such as NWEA might not wish to dispute the

issuance or contents of a permit, but to enforce the permit’s

App-59

CSOs are the overflow points from combined sewage and

stormwater collection systems. Because the number and

volume of overflow events from CSO systems are caused

primarily by uncontrollable events--i.e., the amount of

stormwater entering the system--regulators have no ready

way of determining what portion of the flow in a given

discharge event is sewage and what portion is rainwater.

Without this information, it is impossible to determine the

level at which to set a numeric concentration-based permit

limit in order to ensure that the gross amount of pollution

discharged will not violate water quality standards.

In Jefferson County, the Supreme Court recognized that the

numerical criteria components of state water quality

standards cannot reasonably be expected to address all the

water quality issues arising from every activity which can

affect the State’s hundreds’ of individual water bodies. 114

S. Ct. at 1912. The Court reasoned that requiring the

States to enforce only the numerical criteria component of

their water quality standards “would in essence require the

States to study to a level of great specificity each individual

surface water to ensure that the criteria applicable to that

water are sufficiently detailed and individualized to fully

protect the water’s designated uses.” Jd. Accordingly, the

Court stated that in the absence of “textual support for

imposing this requirement,” it was “loath to attribute to

Congress an intent to impose this heavy regulatory burden

on the States.” Id.

Because the statutory language, legislative history, and case

terms.

bg a

App-60

law authorize citizens to enforce permit conditions stated in

terms of water quality standards, we hold that NWEA has

standing to enforce the water quality standards contained in

Portland’s NPDES permit.

C. Procedural Determinations

In the court below, Portland asserted two other

jurisdictional arguments upon which NWEA now seeks a

determination. Portland argued that 1) the case was moot

because of the changes in the 1991 permit; and 2) any

action was barred under 33 U.S.C. § 1319(g)(6) by DEQ’s

subsequent enforcement actions.

Because NWEA claims entitlement to attorney’s fees based

on the alleged violations of the old permit, and seeks to

enforce the water quality standards independently of the

effluent limitations, a live and genuine controversy

remains, so the case is not moot. With respect to the §

1319(g)(6) defense, the district court did not reach this

question, having ruled against NWEA on other grounds.

We therefore remand for a determination on this issue.

|

Ill. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

holding that the 1984 permit covered the CSOs, and we

REVERSE the district court’s holding that CWA § 505(a)

does not confer jurisdiction for citizen suits to enforce

water quality standards when they are conditions of a CWA

permit.

AFFIRMED in part, REVERSED in part, and

| |

App-61

REMANDED.

KLEINFELD, Circuit Judge, dissenting:

I respectfully dissent from Part II-B of the opinion. I

concur in Part I-A.

We decided this case and filed our opinion in 1993, at 11

F.3d 900. As the majority concedes in footnote 1, the full

court voted on whether to go en banc, and decided against

it. We are required by Federal Rule of Appellate

Procedure 41(a) to issue our mandate seven days after entry

of the order denying the petition for rehearing. I do not

know why this was not done.

The only justification I can see for us to issue a new

decision, contrary to our previous one and contrary to what

we said in Oregon Natural Resources Council v. U.S.

Forest Service, 834 F. 2d 842 (9th Cir. 1987), would be a

Supreme Court decision to the contrary. When the

Supreme Court makes a decision which renders a decision

of ours erroneous, we sometimes recall a mandate and

revise our disposition in light of the Supreme Court

decision. The majority opinion suggests that PUD No. 1 of

Jefferson County v. Washington Department of Ecology,

114 S. Ct. 1900 (1994), has changed the law. If it did with

respect to an issue dispositive of the case before us, I

would not object to recalling our mandate to correct our

error. But it does not.

| The question before us is whether citizens’ suits may be

brought to enforce water quality standards, as opposed to

App-62

effluent limitations. Jefferson County says nothing about

that. Basically, water quality standards say that a body of

water should be no more polluted than the standard.

Effluent limitations say that a particular discharger may

discharge no more than the allowed quantity of pollutants.

Jefferson County does not involve a citizens’ suit, says

nothing about citizens’ suits, and implies nothing about

citizens’ suits. The question the court decided was whether

“the state environmental agency, properly conditioned a

permit for the project on the maintenance of specific stream

flows to protect salmon and steelhead runs.” Jd. at 1905.

The court decided that EPA’s interpretation, “that

activities, not merely discharges -- must comply with state

water quality standards is a reasonable interpretation of § :

401, and is entitled to deference.” Id. at 1909.

If we were to try to tease something out of Jefferson County

to assist our decision in this case, we would do better to :

focus on the Court’s discussion of the appropriate use of j

water quality standards, which is to generate limitations for ;

specific activities. Here is the Court’s discussion of the

distinction between water quality standards and effluent

limitations:

Washington’s Class AA water quality standards are

typical in that they contain several open-ended criteria

which, like the use designation of the River as a fishery,

must be translated into specific limitations for individual

projects.

nat eC NS le Cla ISTE ee Sar AS

Id. at 1911 (emphasis added); see also id. at 1910 (“States j

may condition certification upon any limitations necessary

to ensure compliance with state water quality standards.”

App-63

(emphasis added)).

We have said that only permit limitations derived from

water quality standards, not water quality standards

themselves, are enforceable by citizens’ suits. Oregon

Natural Resources Council v. U.S. Forest Service, 834 F.

2d 842 (9th Cir. 1987).

Thus, effluent limitations may be derived from water

quality standards and may be enforced when included in a

discharger’s permit. We agree with defendants that it is

not the water quality standards themselves that are

enforceable in section 1311(b)(1)(C), but it is the

“limitations necessary to meet” those standards, or

“required to implement” the standards.

Id. at 850 (emphasis added).

While our statement in Oregon Natural Resources Council

may be dictum as applied to the case at bar, I do not see a

good reason for deciding the case at bar inconsistently with

what we said in Oregon Natural Resources Council. The

Supreme Court has now analyzed the difference between

water quality standards and effluent limitations along the

same lines in Jefferson County. Judge Ingram’s earlier

opinion in the case at bar pointed out that “the authorities

generally reject citizen suit standing to enforce water

quality standards,” and appellants “have not been able to

find a single case in which a court held that citizens’ suits

could be used to enforce water quality standards.”

Northwest Environmental, 11 F.3d at 907.

The majority reasons that 33 U.S.C. § 1365 allows

App-64

citizens’ suits for violation of “an effluent standard,” and

defines “effluent standard” as “a permit or condition

thereof,” and Portland’s permit, in addition to detailed

effluent limitations, requires that no wastes be discharged

which would violate water quality standards. This

reasoning has force, and I am troubled by the difficulty of

applying Oregon Natural Resources Council in the face of

this logical, literal construction.

Nevertheless, we previously concluded on the basis of

analysis of several additional provisions of the statute that it

is not the permittee who must comply with the water

quality standards, but rather the issuing authority, which

has a “duty . . . to include in the permit end-of-pipe

effluent limitations that will ensure that water quality

standards are met.” Northwest Environmental, 11 F.3d at

908. That makes sense in light of what the Supreme Court

said in Jefferson County. Congress meant for the issuing

authority to decide upon end-of-pipe effluent standards for

the permit, which it could derive from water quality

standards, when Congress allowed citizens’ suits to enforce

permit limitations. It did not mean for citizens’ suits to

proceed on the basis of permit violations, where the

permittee complied with end-of-pipe discharge limitations

but the water still wound up being too polluted. A water

quality standard should be deemed to be not among those

authorized by the statute for purposes of citizen suit

enforcement.

The City of Portiand persuasively argues that, if the water

quality standard were used as a basis for punishing sewage

overflows during rainy weather, then the detailed end-of-

pipe discharge limitations in the permit designed for this

App-65

precise problem would have no practical effect. The City

provided evidence that the actual intent of the permit

issuing authority and the City of Portland was that the

water quality standards language was put in for pollutants

other than the ones, such as the sewage overflows in rainy

weather, known about when the permit was issued. This

reading would be consistent with the general principle of

treating the specific as overcoming the general. See Karrell

v. US, 181 F. 2d 981 (9th Cir. 1950) (specific provision

governs even though general provisions, if standing alone,

would include the same subject); International Ass'n of

Machinists & Aerospace Workers v. Boeing, 833 F.2d 165,

169 (9th Cir. 1987) (same). We should follow the City’s

persuasive construction of the permit.

The majority’s argument from legislative history and policy

seems to me to have no force. The history shows that

because of the ineffectiveness of water quality standards as

pollution limiting device, Congress decided to change the

enforcement mechanism to effluent limitations. See

Northwest Environmental, 11 F.3d at 909-11.

The majority argues that as a matter of policy, Congress

meant to prevent pollution, and citizens’ suits add power to

anti-pollution enforcement mechanisms, so there is no

reason to deny citizens’ suits enforcement. The first two

propositions do not imply the third. There can be too much

of a good thing. See, e.g., on other subjects, United States

ex rel. Miller v. Greer, 789 F.2d 438, 451-52 (7th Cir.

1986) (Easterbrook, J., dissenting); National Labor

Relations Bd. v. Walton Manufacturing Co., 289 F.2d 177,

182 (Sth Cir. 1961) (Wisdom, J., dissenting). There is too

much of a good thing when its value is exceeded by the

App-66

value of other good things available for the same or less

cost.

Water quality standards are a useful device for government

enforcement authorities (who decided not to prosecute this

case against the City of Portland), because they provide

standards for effluent limitations and goals toward which

enforcement should be aimed. They are too uncertain and

amorphous, however, for use against specific polluters.

Suppose, hypothetically, that water quality standard allows

for 100 units of a pollutant, upstream and non-point source

polluters discharge 50 units, and the downstream discharger

is permitted to discharge 50 units. If the upstream and non-

point source polluters increase their discharge to 80 units, it

doés not automatically follow that the downstream

discharger should be limited to 20. The burdens of so

severe a limitation may exceed the burdens of the extra

pollution, or enforcement efforts might more appropriately

be directed at the other polluters. In the case at bar, the

majority concedes that the social costs of filling the streets

and basements of Portland with sewage, or spending

between a half billion and $1.2 billion dollars on

renovation, are the practical alternatives to tolerating

violations of the water quality standards. See Majority

Opinion at I-A, [I-A. A public authority might rationally

decide that filling the streets and basements with sewage is

worse than polluting the river with it, and that the citizens

of Portland need several years to raise and spend the money

necessary to avoid running the sewage into the streets, the

basements, and the river.

The reason that this case has not been rendered moot by

subsequent changes in the permit which eliminated the basis

Rha wel we eR NRT, OH eE.

Ped a Raa, GAS RST a be pitinn: ciate he Sask aiNetic ie e

App-67

for the claims is NWEA’s claim for attorneys’ fees and

possibly civil penalties. If the private advocacy group

which brought this action prevails on the claim that the City

should have done something more than it did under its now-

obsolete permit, then it will obtain a great deal of money

from the citizens of Portland. This incentive is why

citizens’ suits may produce to much of a good thing with

regard to enforcement.

Suppose, hypothetically, we authorized citizens’ suits to

enforce highway speed limits. We can all agree that

excessive speeds on the highways are undesirable, and that

highway patrol officers are too few to ticket all the drivers

who speed. We would get more prosecution, and more

court cases, then the prudent exercise of discretion would

justify. A police officer might exercise discretion not to

ticket drivers less than 10 miles per hour over the limit,

because the increased danger was negligible, and the

enforcement burden to the officer and the courts great. The

officer might, however, ticket a speeder with a makeshift

towing rig which looked dangerous. The officer and the

judge would be pleased to have only one ticket, not

hundreds, to dispose of, and the enforcement expense

would be small relative to the reduction in danger. A

“public interest advocacy group,” however, would have an

incentive to ticket all the automobiles going a few miles per

hour over the limit, because the private group, unlike the

police officer and the judge, would have a financial

incentive to enforce against the large number of minor

violators, even though the burdens of enforcement would

be very high relative to the improvement in public safety.

A zealous concern for safety on the highways would

App-68

doubtless contribute to doing well by doing good, but there

would be too much good done.

In the case at bar, all the precedents indicate that citizens’

suits are not allowable for violations of water quality

standards, where those standards are not translated by the

permit into effluent limitations. There is no good reason

for avoiding application of precedent, and creating new law

which allows citizens’ suits for purposes of obtaining

attorneys’ fees and penalties for past violations of water

quality standards. We should have left our previous

decision alone.

App-69

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORTHWEST ENVIRONMENTAL)

ADVOCATES )

A Non-Profit Oregon Corporation, ) No. 92-35044

and NINA BELL, )

Plaintiffs-Appellant, ) D.C. No.

) CV-91-339-PA

VS. )

) ORDER

CITY OF PORTLAND, )

Defendant-Appellee. )

Filed January 24, 1996

Before:Pregerson, Kleinfeld, Circuit Judges, and

INGRAM, District Judge.*

Dissent by Judge O’Scannilain.

Judges Pregerson and Ingram voted to deny appellee's

amended petition for rehearing. Judge Pregerson voted to

reject the suggestion for rehearing en banc and Judge

Ingram so recommended.

Judge Kleinfeld voted to grant the petition for rehearing

and to accept the suggestion for rehearing en banc.

The full court was advised of the suggestion for rehearing

en banc. An active judge requested a vote on whether to

rehearing the matter en banc. The matter failed to receive

a majority of the votes of the nonrecused active judges in

favor of en banc consideration. Fed. R. App. FP. 35.

The amended petition for rehearing is denied and the

a cy Ml

SS ees

App-70

suggestion for rehearing en banc is rejected.

*The Honorable William Ingram, United States Senior

District Judge for the Northern District of California,

sitting by designation.

No. 92-35044

O’SCANNLAIN,

Circuit Judge, joined by HALL, T.G. NELSON, and

KLEINFELD, Circuit Judges, dissenting from order

rejecting suggestion for rehearing en banc.

By failing to rehear this case en banc, we have significantly

reshaped federal environmental law, without consent of

Congress, to the curious end that any citizen will now be

permitted to bring a lawsuit at government expense for the

enforcement of state water quality standards that have not

been translated into effluent limitations in federal permits.

Such unwarranted expansion of citizen standing conflicts

with the plain language of the Clean Water Act and with

prior decision of this circuit and others.

It should go without saying that the environment faces real

and growing dangers that warrant protective measures and

challenge us to develop innovative solutions. Nevertheless,

by allowing citizens to enforce standards that Congress

specifically allocated to government agencies to monitor,

the court has upset the delicate balance envisioned by

Congress in its promulgation of the current enforcement

regime for environmental law. The result promises to

invite excessive, costly, and counterproductive citizen suits,

?

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Sarnia ED SD

App-71

funded by the taxpayers, for the enforcement of standards

that are imprecise and astronomically costly to the

municipalities affected.

The Clean Water Act allows citizens to enforce effluent

limitations contained in federal permits, but the Act does

not permit citizens to enforce general water quality

provisions. 33 U.S.C. § 1365. There is more than a

technical distinction involved; there are significant

consequences at stake. Water quality standards address the

level of pollutants found in a body of water, while effluent

limitations focus on the level of pollutants in the effluent

discharged into a body of water by a particular discharger

As Judge Kleinfeld notes in his well-articulated dissent,

“(water quality standards are a useful device for

government enforcement authorities . . . because they

provide standards for effluent limitations [but water quality

standards] are too uncertain and amorphous .. . for use

against specific polluters.” Northwest Environmental

Advocates v. Portland, 56 F.3d 979, 992 (9th Cir. 1995)

(Kleinfeld, J., dissenting) (“NWEA II”). While state water

quality standards may serve as an important source of

authority for a state to impose additional pollution contro!

requirements, they should not be used as a vehicle for

flooding the federal courts with citizen suits against

permittees who are meeting the specific requirements (1.¢

effluent limitations) outlined in their permits.

In its original opinion released more than two years ago,

the same panel, writing for the court, held the exact

opposite of what it now holds. There, the then-majority

opined that citizens do not have a private right of action to

enforce water quality standards contained in Portland's

App-72

permit because such standards do not constitute an “effluent

standard or limitation” under 33 U.S.C. § 1365(a) and (f)

and ruled for the City of Portland. Northwest

Environmental Advocates v. Portland, 11 F.3d 900 (9th

Cir. 1993) (“NWEA I”). Judge Pregerson dissented.

The citizen plaintiffs then filed a suggestion for rehearing

en banc which failed to receive a majority of votes of the

active judges of the full court. On April 25, 1994, the

panel resumed control of the case. Instead, however, of

entering the order denying the petition for rehearing and

rejecting the suggestion for rehearing en banc, and thereby

allowing the mandate to issue seven days later under FRAP

41(a), the panel held on to the case and reconsidered its

holding in light of PUD No. 1 of Jefferson County v.

Washington Department of Ecology, _. U.S. __, 114S.

Ct. 1900 (1994) (“Jefferson County”), which the Supreme

Court decided on month after rejection of the en banc call

in NWEA I. Relying on Jefferson County, the panel

developed a new majority and thereupon vacated its

original opinion and substituted a new one holding that

citizens indeed do have standing under the Clean Water Act

to enforce water quality standards. NWEA II, 56 F.3d 979,

filed June 7, 1995.

In my view, the panel erred by reversing its original

position, because Jefferson County simply does not support

such reversal and the panel’s new holding conflicts not only

with a prior decision of our own court, but also with the

law of other circuits. The court now cites Jefferson County

in support of the view that Congress intended to confer

standing on citizens to enforce water quality standards.

NWEA II, 56 F.3d at 987. However, as the majority

eventually acknowledges, id., at 988, and as the dissent

App-73

emphasizes, Jefferson County has nothing to do with

citizens’ standing. Jd. at 990 (Kleinfeld, J., dissenting)

(“Jeffersor. County does not involve a citizens’ suit, says

nothing about citizens’ suits, and implies nothing about

citizens’ suits.”).

Instead of addressing citizen standing to enforce a permit

condition, Jefferson County concerns a local utility

district’s appeal of a stream flow condition imposed by the

state as part of the state’s certification of the district’s

application for a federal permit to build a hydroelectric

power plant. __ U.S. __, 114S. Ct. at 1907-08. The

Supreme Court held that “States may condition certification

[of projects] upon any limitations necessary to ensure

compliance with state water quality standards or any other

‘appropriate requirement of State law,’” and that the

minimum flow condition imposed by Washington was an

appropriate requirement of state law. Id. at __, 114 S. Ct.

at 1910. This holding merely indicates that states may

impose certain water quality requirements as conditions for

granting the state certification that must be obtained by an

applicant seeking a federal permit. /n no way does this

holding support the notion that citizens have a private right

of action to challenge permit conditions that have not been

translated into effluent limitations.

Section 505 of the Clean Water Act authorizes federal

jurisdiction over citizen suits “(1) against any person . . .

who is alleged to be in violation of (A) an effluent standard

or timitation under this chapter... .” 33 U.S.C. §

1365(a)(1). In defining “effluent standard or limitation, ”

the section refers to various discharge-related limitations

that may be imposed by other sections of the Act or by a

App-74

federal permit. 33 U.S.C. § 1365(f); see 33 U.S.C. §

1365(f)(6) (“effluent standard or limitation” means “a

permit or condition thereof”); Jefferson County, __ U.S.

__, 114 S. Ct. at 1915, 1916-17 (Thomas, J., dissenting)

(describing discharge-related limitations in the Act).

Since the citizen-plaintiffs in this litigation allege

violations, not of effluent limitations, but rather of a state

water quality provision contained in Portland’s permit, the

citizens fail to meet the Clean Water Act’s requirements for

citizen standing. By holding otherwise, NWEA II conflicts

with our decision in Oregon Natural Resources Council v.

U.S. Forest Service, 834 F.2d 842 (9th Cir. 1987)

(“ONRC”), in which we stated that citizens may file suit to

enforce permit limitations derived from water quality

standards, but not water quality standards themselves. /d.

at 850 (“[E]ffluent limitations may be derived from state

water quality standards and may be enforced when included

in a discharger’s permit. We agree with defendants that it

is not the water quality standards themselves that are

enforceable. . . .”).

Granted, ONRC involved citizens attempting to enforce

state water quality standards under 33 U.S.C. §

1311(b)(1)(C), as opposed to state water quality standards

contained in a permit. However, the court’s conclusion

that the Clean Water Act forbids citizens from suing to

enforce water quality standards under section 1311(b)(1)(C)

may logically be extended to suits by citizens to enforce

water quality standards in permits. See NWEA I, 11 F.3d

at 907 (citing authorities indicating that “whenever courts

have been faced with the question, the answer has been that

App-75

citizen suits cannot be used to enforce water quality

standards”).

As the same panel declared in NWEA I, “[The plaintiffs]

have not been able to find a single case in which a court

held that citizen suits could be used to enforce water quality

standards, whether the water quality standards were

incorporated in a NPDES [National Pollution Discharge

Elimination System] permit or not.” Jd. at 907-08; see also

id. at 909-11 (outlining legislative history supporting

conclusion that citizens lack standing to enforce water

quality standards that have not been translated into effluent

limitations).

No other circuit has recognized a right of citizens to sue for

the enforcement of state water quality standards contained

in permits. In fact, other circuits have explicitly and

implicitly ruled out such suits. See Save Our Community v.

United States Environmental Protection Agency, 971 F.2d

1155, 1162 (5th Cir. 1992) (“Without the violation of

either (1) an effluent standard or limitation under the CWA,

or (2) an order issued with respect to these standards and

limitations, the district court lacks jurisdiction to act [in a

citizen suit].”); United States v. Hooker Chemicals &

Plastics Corp., 749 F.2d 968, 979 (2d Cir. 1984)

(“‘{ajuthority granted to citizens to bring enforcement

actions under this section is limited to effluent standards or

limitations established administratively under the Act’”

(quoting S. Rep. No. 414, 92d Cong., 2d Sess. 80 (1972),

reprinted in 1972 U.S.C.C.A.N. 3668, 3747)).

Furthermore, the holding in NWEA II directly conflicts with

the Second Circuit’s decision in Atlantic State Legal

App-76

Foundation v. Eastman Kodak, 12 F.3d 353 (2d Cir. 1993),

cert. denied, ___, U.S. __, 115 S. Ct. 62 (1994). In

Atlantic States, the Second Circuit held that “state

regulations, including the provisions of SPDES [State

Pollutant Discharge Elimination System] permits, which

mandate ‘a greater scope of coverage than that required’ by

the federal CWA and its implementing regulations are not

enforceable through a citizen suit under 33 U.S.C. §

1365.” Id. at 359 (citation omitted). In addition, the court

noted:

States may enact stricter standards for wastewater

effluents than mandated by the CWA and federal EPA

regulations. 33 U.S.C. § 1342(b). These states’

standards may be enforced under the CWA by the states

or the EPA, 33 U.S.C. § 1342(h), but private citizens

have no standing to do so.

ee eek eee

Id. at 358.

In short, NWEA II, contradicts the plain language of the

Clean Water Act, conflicts with a prior decision of this 3

circuit, and creates a needless intercircuit conflict with all

courts of appeals that have addressed the issue. The

decision establishes a citizens’ cause of action that

Congress never intended and that no other circuit has felt

compelled to recognize.

Failure to rehear this case en banc is a most unfortunate

and unsettling misstep in the orderly development of federal

environmental law. I respectfully dissent.

App-77

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

NORTHWEST ENVIRONMENTAL )

ADVOCATES, an Oregon non-

) CV No.

profit corporation, and NINA BELL, ) 91-339-PA

individually ,

Plaintiffs,

Vv.

CITY OF PORTLAND,

Defendant.

January 8,

PAUL FORTINO

MARY C. WOOD

Perkins Coie

Suite 2500

U.S. Bancorp Tower

111 SW Fifth Avenue

Portland, OR 97204

Attorneys for Plaintiffs

JAN L. BETZ

LINDA MENG

TERENCE L. THATCHER

Deputy City Attorneys

315 City Hall

1220 SW Fifth Avenue

Portland, OR 97204

Attorneys for Defendant

)

) AMENDED

) OPINION

)

)

)

)

)

1992

PATRICK A. PARENTEAU

700 NE Multnomah

Suite 400

Portland, OR 97232

App-78

PANNER, J.

Plaintiffs Northwest Environmental Advocates (NWEA)

and Nina Bell, NWEA’s Executive Director, bring this

action against defendant City of Portland under the Clean

Water Act (CWA), 33 U.S.C. §§ 1251-1387. Plaintiffs

seek to end defendant’s discharge of raw sewage and other

wastes into the Willamette River and the Columbia Slough,

a tributary of the Willamette.

Pursuant to the parties’ stipulation, I considered 1ll

materials filed in support of defendant’s motion to dismiss

and motion for summary judgment, and plaintiffs’ cross

motion for partial summary judgment, as submissions for a

court trial on liability only with final argument on

November 25, 1991. Having considered all such materials

and the arguments presented, I find for defendant. These

are my findings of fact and conclusions of law. Fed. R.

Civ. P. 52(a).

FINDINGS OF FACT

The City’s sewer system is antiquated. The majority of the

system is a “combined sewer,” carrying both sanitary waste

and storm runoff. Sanitary waste is untreated raw sewage.

Because it carries storm runoff, volume carried by the

sewer system increases when it rains. Before 1947, the

combined sewers dumped all flow directly into the

Willamette River and the Columbia Slough.

In 1947 defendant began building interceptors in the sewer

lines. The interceptors are designed to divert the sewer

flow from entering the waterways and pipe the waste to a

App-79

sewage treatment plant. The treated effluent from that

facility is then discharged into the Columbia River. This is

how the system operates today.

The interceptors, however, do not have unlimited capacity.

They were designed to divert, or “intercept,” three times

the average dry weather flow. They can carry the

anticipated flow of sanitary sewage, plus the storm water

runoff from light rain storms.

Today, when more storm runoff and sewage flows through

the system than the interceptors and the treatment plant can

handle, the pipes that formerly discharged directly into the

Willamette River and the Columbia Slough, do exactly that:

discharge the excess flow directly into those bodies of

water, without treatment. The actual discharge from these

points, and sometimes the pipe themselves, are called

“combined sewer overflows” or CSOs.

The CWA establishes the Nationa! Pollutant Discharge

Elimination System (NPDES), under which permits for

discharges into navigable waters are issued by the

Administrator of the Environmental Protection Agency

(EPA). The permit system may also be administered by a

state if the state program is approved by the EPA

Administrator. 33 U.S.C. § 1342(b).

Oregon’s federally approved NPDES program is

administered by the Department of Environmental Quality

(DEQ) and DEQ’s parent commission, the Environmental

Quality Commission (EQC). NPDES permits are issued

for five-year periods. DEQ issued NPDES permits to

defendant for defendant’s sewer system in 1974, 1979, and

App-80

1984. A major issue in this case is whether the 1984

permit covered the CSO discharges. As discussed below, I

find that the 1984 permit did cover the discharges.

The 1984 permit was due to expire in July 1989. It stayed

in effect after that date during the renewal process. Or.

Admin. R. 340-14-030. In December 1990, DEQ provided

defendant with a preliminary draft permit which

incorporated some CSO requirements that EPA had issued

in a September 1989 “National Combined Sewer Overflow

Control Strategy.” DEQ required defendant to complete a

facilities plan and time schedules for elimination of CSOs.

Defendant maintained that it could not eliminate the CSOs

during the period of the next five-year permit. Defendant

and DEQ began discussing the use of a compliance order

outside of the permit to provide a longer than five-year

schedule for elimination of the CSOs. In August 1991,

DEQ issued defendant a renewed NPDES permit for its

sewer system. Simultaneously, the EQC approved a

Stipulation and Final Order (SFO) addressing defendant’s

CSOs.

The SFO requires defendant to develop a plan and institute

significant changes in its sewer system. Defendant must

have a final facilities plan in 1994. The plan must be

designed to attain compliance with applicable water quality

standards at all CSOs either by December 1, 2006 or

December 1, 2011.

CONCLUSIONS OF LAW

Plaintiffs raise two causes of action: (1) they allege that

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App-81

defendant has violated the CWA by discharging pollutants

into navigable waters through the CSOs without an NPDES

permit, (the permit claim); and (2) that defendant violated

the CWA by violating state water quality standards in the

receiving waters, (the water quality claim).

Plaintiffs seek: (1) a declaration that defendant is in

violation of the CWA; (2) an injunction setting a date for

full compliance with the CWA and establishing a

comprehensive schedule with “milestones adequate to

ensure that the ultimate goal is met;” (3) civil penalties;

and (4) attorney’s fees.

I. Permit Claim

A. Injunctive Relief

Plaintiffs filed suite in March 1991, before the August 1991

renewal of the NPDES permit and the issuance of the SFO.

Defendant argues that the request for injunctive relief under

this claim is moot because it now discharges waste from the

CSOs under a valid NPDES permit.

Plaintiffs concede that the CSOs are covered by the 1991

permit. Thus, the claim for injunctive relief insofar as it

seeks to have the CSO discharges covered by a current

permit, is moot.

Nonetheless, plaintiffs maintain that their request for

injunctive relief on this claim is not completely moot.

They contend that a mootness defense is available to

defendant regarding injunctive relief only when actual

corrective action has been taken to abate the underlying

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App-82

behavior so that it could not reasonably be expected to

recur. Because, plaintiffs maintain, the SFO’s corrective

action will take twenty years, defendant cannot prove that

the discharges will not recur.

I agree with defendant. The CSOs are covered by the 1991

permit. The permit has been approved by DEQ and EPA.

The corrective action is the SFO. The fact that it will take

twenty years is regrettable. However, that is the course of

action approved by DEQ. There simply is no present

permit violation upon which to fashion injunctive relief.

B. Civil Penalties

Defendant argues that if the injunctive relief request is

moot, the civil penalty portion of the permit claim is also

moot. Alternatively, defendant argues that plaintiffs are

barred from seeking civil penalties because the state

commenced an enforcement action regarding the CSOs

before plaintiffs initiated this suit, the state is diligently

prosecuting the action, and the prosecution is occurring

under a state law comparable to the federal penalty scheme

found in section 309(g) of the CWA. 33 U.S.C. §

1319(g)(6).

I need not consider these arguments. Even if the request

for civil penalties is not moot and section 1319(g)(6) does

not bar plaintiffs’ claim for penalties, defendant’s NPDES

permits cover the CSO discharges. There have been no

unpermitted CSO discharges.

A five-year statute of limitations period applies to citizen

enforcement actions under the CWA. Sierra Club v.

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Chevron U.S.A., Inc., 834 F.2d 1517, 1521 (9th Cir.

1987). At issue here is the validity of the 1984 permit

only. Nonetheless, language from the two earlier permits

is relevant.

The 1974 permit allowed the discharge of treated effluent

into the Columbia River from the treatment plant. Eimstad

Aff., Exh. A at 1. It also separately stated:

S6. The permittee shall provide interception of at least

three times the dry weather flow before discharge shall

occur at all diversion structures. Discharge at overflow

points 003 through 066 is permitted when the flow at

diversion structures exceeds three times the dry weather

flow. The overflow from these diversion structures shall

be minimized and/or eliminated as much as practicable

to coincide with the water recreation season (June 1 to

October 31 of each year) and in accordance with the

infiltration-inflow plan adopted under Condition S2.

Id. at2. Overflow points 003 - 066 are the CSOs. The

1979 permit, after identifying one outfall from the

treatment plant as the only “source covered by this

permit,” contained language similar to the quoted passage

from the 1974 permit. Jd., Exh. B at 2.

The 1984 permit listed two outlets from the treatment plant

as “sources covered by this permit.” Jd., Exh. C at 1.

Unlike the previous two permits, the 1984 permit never

referenced any other outfall numbers. Thus, the CSOs

were not specifically identified in the permit. The 1984

permit did, however, without mentioning the specific

outfall numbers, contain a passage similar to that in the

1974 and 1979 permits:

App-84

4. The permittee shail provide interception of at least

three times the dry weather flow before discharge shall

occur at any diversion structure. The overflow from

these diversion structures shall be minimized and/or

eliminated as much as practicable during the water

recreation season (June 1 to October 31).

Id. at 2. The difference between the 1974 and 1979

permits on the one hand and the 1984 permit on the other is

that the older permits specifically cited outfalls 003 - 066

amidst this nearly identical language.

Defendant argues that the 1984 permit covered the CSO

discharges. Defendant acknowledges that the 1984 permit

did not, as did the previous permits, reference the CSOs by

outfall number. Defendant contends that the prior permits

show that DEQ knew what diversion structures were,

where they were, and how they worked when the 1984

permit was issued. When the 1984 permit is examined in

light of the older permits, defendant maintains it is apparent

that the 1984 permit simply used a shorthand method of

referring to the same discharges.

Defendant further relies on the affidavit of Harold Sawyer,

former Water Quality Division Administrator for DEQ.

Sawyer oversaw Oregon’s NPDES permit program until

1986. He states that Portland’s entire sewer system,

including CSO outfalls, was permitted by Portland’s 1984

NPDES permit and by its prior NPDES permits. Sawyer

Aff. at 2. He also states that combined sewer overflows

that occurred after interception of three times dry weather

flow were not considered to be violations of Portland’s

App-85

1984 NPDES permit or any of its prior NPDES permits

Id.

Additionally, the final SFO states that:

[Defendant’s] prior NPDES permit, issued on September

18, 1984, did not expressly identify the combined sewer

overflow discharge points that are part of the sewer

system. Prior to the development of the [DEQ’s] final

draft “Oregon Strategy for Regulating Combined Sewer

Overflows (CSOs)” on February 28, 1991, as a matter

of policy the [DEQ] did not always list CSO discharge

points in an NPDES permit but, in many instances,

issued permits for an entire sewer system. EPA's

Region 10 office approved the issuance of such permits

[Defendant’s}] 1984 NPDES permit is a permit for the

sewer system, which includes CSO outfalls, but did not

contain specific effluent limitations for CSOs.

Eimstad Aff., Exh. H at 2-3. Defendant argues that this

demonstrates DEQ’s intent that the 1984 permit covered the

CSOs. Plaintiffs argue that because the CSOs were not

listed under the “sources covered by this permit” section of

the 1984 permit, that the plain language covered only the

two outfalls from the treatment plant. Plaintiffs maintain

that the subsequent permit language regarding diversion

structures and the prohibited flow below three times the dr)

weather flow, should not override the clear language on the

face of the permit setting for the sources covered by the

permit.

Plaintiffs also argue that the fact that the 1984 permit

purported to cover defendant’s entire sewer system does not

App-86

mean that it covered the CSOs. Plaintiffs rely on

Montgomery Environmental Coalition v. Costle, 646 F.2d

568, 592 (D.C. Cir. 1980) for the proposition that CSOs

are not considered part of a “treatment works.”

“Treatment works” refers to a device or system used in the

treatment of sewage or wastes. Jd. at 590 n. 17. It

includes sewers, pipes, etc. only if they convey wastewater

to a treatment plant. Jd. The problem with plaintiffs’

argument then, is that a sewer system that has CSOs, which

do not convey wastewater to a treatment plant, is broader

than a “treatment works.” Thus, the fact that CSOs are not

considered part of a “treatment works,” does not mean that

they are not part of a sewer system covered by an NPDES

permit.

Plaintiffs rely on two documents suggesting that the 1984

permit did not cover the CSOs. First, they cite a February

1988 letter written by defendant’s Bureau of Environmental

Service’s Chief Engineer W.C. Gaffi in which he states, in

part:

The City supports ODEQ’s position to permit the CSO

outfalls through a modification to the existing treatment

plant permit. This approach should achieve the same

goal as individual CSO permits and reduce the

administrative cost of doing so.

Parenteau Decl., Exh. 16. According to plaintiffs, if the

1984 permit covered the CSOs, there would have been no

need to state that they should be permitted through a

modification to the “existing treatment plant permit.”

Plaintiffs also rely on a February 1991 document entitled

App-87

“Oregon’s Strategy for Regulating Combined Sewer

Overflows (CSOs),” written by DEQ in response to EPA’s

National Combined Sewer Overflow Strategy. It states in

part:

1. The City of Portland: 12 CSOs to the Columbia

Slough and 43 to the Willamette River. None of these

outfalls are covered by a permit, however, all are

proposed to be addressed in the Portland - Columbia

Blvd STP permit renewal.

Parenteau Decl., Exh. 13 at 5. Plaintiffs rely on this

language to argue that the CSOs were not covered by the

1984 permit.

To refute this argument, defendant submits the affidavit of

Barbara Burton, the author of the Oregon strategy

document. She states that the language “none of these

outfalls are covered by a permit” meant only that the CSOs

were not individually listed and assigned effluent

limitations. Burton Affidavit at 2. Her understanding was

that the 1984 permit was for the entire sewer system

including the CSOs. Id.

Plaintiffs’ strongest argument rests with Gaffi’s letter. A

fair reading of the letter suggests that at least Gaffi himself

did not view the 1984 permit as covering the CSOs.

Nonetheless, I agree with defendant that the 1984 permit

covered the CSOs.

First, the permit covered the entire sewer system which, as

explained above, includes the CSOs. Additionally, to

construe the permit as plaintiffs suggest would render the

App-88

language limiting the discharges in summer and prohibiting

discharges of less than three times the average the dry

weather flow, entirely meaningless. It is obvious from the

1974 and 1979 permits that this language was meant to

address CSO discharges. I am also persuaded by Sawyer’s

affidavit as well as Burton’s explanation that “none of these

outfalls are covered by a permit” meant only that none of

the CSOs was covered by an individual permit.

Gaffi’s letter, though capable of suggesting that the permit

did not cover the discharges, is not persuasive enough in

the face of the common sense reading of the permit, which

when examined in context with the older permits and when

construed to give the language limiting discharges meaning,

directs a conclusion that the 1984 permit covered the CSO

discharges.

Il. The Water Quality Claim

In this claim, plaintiffs argue first that defendant violated

the CWA because the unpermitted CSO discharges violated

Oregon water quality standards. Alternatively, plaintiffs

maintain that even if the CSOs were discharging pursuant

to the 1984 permit, defendant violated the permit conditions

because the permit itself required compliance with Oregon

water quality standards. Because the 1984 permit covered

the CSO discharges, I need only consider plaintiffs’

alternative argument.

The CWA authorizes citizen suits “(1) against any person .

. . who is alleged to be in violation of (A) an effluent

standard or limitation under this chapter... .” 33 U.S.C.

§ 1365(a)(1) (emphasis added). According to defendant,

App-89

plaintiffs cannot maintain their water quality claim because

water quality standards do not equal “effluent standards or

limitations under this chapter.”

Generally, the term “effluent limitation” means “any

restriction established by a State . . . on quantities, rates,

and concentrations of chemical, physical, biological, and

other constituents which are discharged from point sources

into navigable waters,....” 33 U.S.C. § 1362(11). The

Ninth Circuit has described water quality standards as

follows:

States establish water quality standards that specify the

uses to be made of a body of water and the maximum

levels of pollutants allowable in view of those uses.

Water quality standards are designed to ensure the

survival of wildlife in navigable waters and to protect

recreational activities in and on the water. 33 U.S.C. §

1312(a). . . . [W]ater quality-based limitations relate to

the environmental effects of different effluent levels.

Sierra Club v. Union Oil Co. of Calif. , 813 F.2d 1480,

1489 (9th Cir. 1987), vacated on other grounds, 485 U.S.

931 (1988).

As described by the Second Circuit in a case discussing the

EPA’s approval of state water quality standards were the

“keystone of the federal pollution control program” prior to

the 1972 enactment of amendments to the Federal Water

Pollution Control Act (now known as the Clean Water

Act). Bethlehem Steel v. Environmental Protection Agency,

538 F.2d 513, 515 (2d Cir. 1976). “If wastes discharged

into receiving waters reduced the quality below permissible

App-90

standards, legal action could be commenced against the

discharger.” Jd. (citation omitted).

Dissatisfaction with the water quality standards as a method

of adequate pollution control enforcement led to their

replacement with “effluent limitations.” Jd. “Instead of

indirectly measuring discharges by their effect on water

quality, monitoring equipment would directly measure

discharges at their source.” Jd. (citation omitted)(emphasis

in original). The court noted that although water quality

standards and effluent limitations are related, they are

entirely different concepts. Jd.

The 1984 permit provided that “[nJotwithstanding the

effluent limitations established by this permit, no wastes

shall be discharged and no activities shall be conducted

which will violate Water Quality Standards as adopted in

[Oregon Administrative Rule 340-41-445]. . . .” Eimstad

Aff., Exh. C at 2.

Plaintiffs argue that they may maintain a suit for water

quality violations pursuant to 33 U.S.C. § 1365(f)(6),

defining section 1365(a)(1)’s “effluent limitation or

standard under this chapter” as a violation of an NPDES

“permit or condition thereof.” Because, plaintiffs argue,

the prohibition on violating water quality standards is a

condition of the 1984 permit, defendant may be sued for

violations of that condition under section 1365(a)(1).

In 1988, the Eastern District of California held that “a state

water quality standard can constitute an effluent standard or

limitation enforceable under [section 1365(a)(1)] only if it

has been incorporated into an NPDES permit.” McClellan

App-91

Ecological Seepage Situation v. Weinberger, 707 F. Supp.

1182, 1200 (E.D. Cal. 1988). Given the distinction

between effluent limitations and water quality standards

discussed above, and the problems with analyzing

violations of water quality standards as opposed to effluent

limitations, this holding is best interpreted to mean that

state water quality standards can constitute effluent

standards, violations of which may be actionable in a

citizen suit, only if they are incorporated into an NPDES

permit through effluent limitations.

Here, though the 1984 permit referred to state water quality

standards, those standards were not incorporated in the

permit through any effluent limitations on the CSOs.

Contrary to plaintiffs’ assertions, the lack of effluent

limitations in the permit did not leave plaintiffs without a

remedy. They could have challenged the sufficiency of the

permit through the appropriate channel - an action filed in

state court. See 33 U.S.C. § 1365(a)(1) (no basis for

citizen suits to challenge state issued NPDES permits in

federal court).

I agree with defendant that the mere reference to water

quality standards in a permit does not make them “effluent

standards or limitations” for purposes of sections

1365(a)(1) and (f). I also agree with defendant that

plaintiffs’ argument is nonsensical in that, according to

plaintiffs, the 1984 permit allowed the CSO discharges but

simultaneously rendered each discharge a violation of the

permit through violations of water quality standards. It is

extremely unlikely that DEQ would have put defendant in

such an impossible position.

App-92

CONCLUSION

I find for defendant on plaintiffs’ first and second causes of

action.

DATED this 8th day of January, 1992.

/s/

OWEN M. PANNER

United Stated District Judge

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