# Appendix — City of Portland v. Northwest Environmental Advocates

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 1018

## Text

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

App-2

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

App-3

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

App-6

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

App-7
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

App-12

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

App-13

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.

App-14

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

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. 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

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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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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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1805%3A2. Public record. Not legal advice.