Amicus Curiae Brief — Milwaukee Metropolitan Sewerage District v. Friends of Milwaukee's Rivers

No. 04-889

Supreme Court, U.S.

JAN 18 2005

THE CLERK

In The

Supreme Court of the Anite

MILWAUKEE METROPOLITAN

SEWERAGE DISTRICT,

Petitioner,

FRIENDS OF MILWAUKEE’S RIVERS

AND LAKE MICHIGAN FEDERATION,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

AMICUS CURIAE BRIEF OF

THE CSO PARTNERSHIP

IN SUPPORT OF PETITIONER

John A. Sheehan*

F. Paul Calamita

AquaLaw PLC

801 East Main Street

Richmond, Virginia 23219

(804) 716-9021

Attorneys for the CSO Partnership

*Counsel of Record

Date: January 18, 2005

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

MOTION FOR LEAVE TO FILE

AN AMICUS CURIAE BRIEF

1. The Combined Sewer Overflow Partnership (“CSO

Partnership”) moves pursuant to Supreme Court Rules 37(b)

and 33.1 for leave to file the enclosed amicus curiae brief in

this case for the reasons set forth below.

2. The CSO Partnership sought the consent of all of the

parties to the filing of this amicus brief. Petitioner

Milwaukee Metropolitan Sewerage District consented to the

filing while Respondents Friends of Milwaukee’s Rivers and

the Lake Michigan Federation withheld consent.

3. The CSO Partnership represents communities

throughout the United States with combined sewer systems.

The CSO Partnership’s members have invested hundreds of ©

millions of dollars in planning, designing, permitting and

construction of combined sewer overflow facilities and are

regulated under federal and state law. The CSO

Partnership’s members strive to protect public health and the

environment in an affordable and cost-effective manner.

4. The decision by the United States Court of Appeals for

the Seventh Circuit in Friends of Milwaukee’s Rivers v.

Milwaukee Metropolitan Sewerage District (Pet. App. la —

33a) misconstrues the Clean Water Act as it applies to

combined sewer overflow systems and establishes a

procedure for the review of consent decrees which, in the

context of combined sewer overflow systems, will

essentially prevent communities from entering consent

decrees with state or federal authorities to plan for future

upgrades to their sewer systems. The impact of this decision

on combined sewer overflow communities will be severe

because planned investments in sewer systems costing

billions of dollars will no longer be subject to court approva

and communities will be unable to set budgets for these

enormous expenditures of public resources.

5. The CSO Partnership’s amicus brief fully complies

with Supreme Court Rule 37.1 because it “brings to the

attention of the Court relevant matter not already brought to

its attention by the parties” and it “may be of considerable

help to the Court.” The CSO Partnership’s unique

nationwide perspective and expertise on the subject matter of

this case will assist the Court in considering the issues zaised

in petitioner’s petition for writ of certiorari.

Accordingly, the CSO Partnership moves for leave to file

the enclosed amicus brief.

TABLE OF CONTENTS

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SUMMARY OF ARGUMENT ...............ccccscssscssscssssssseess 2

ARGUMENT. ...........s.csssssscssssssssseessessssessensssesssncssensensncensees 3

I. The Seventh Circuit’s Ruling that the

Diligent Prosecution Bar Only Applies

When Government Action Guarantees No

Future Violations Will Occur Conflicts

With the Decisions of Other Circuits and

a Prior Decision of this Court.......................ceeeeeees 3

II. The Seventh Circuit’s Ruling Will

Preclude Essential Phased or Iterative

Approaches by Governmental

BITTE caiepuhseinieiacenpiicaninteninsesinitinasidennntnisbitigndsin 4

Ill. The Seventh Circuit’s Ruling Fails to

Adequately Defer to Governmental

Enforcement Discretion in the

Crafting of Enforcement Relief....................00000 6

IV. The Seventh Circuit’s Ruling is

Impractical Because Solutions to

Many Sewer Overflow Cases Will

Require Decades of Work and

Constant Programmatic Renavigation

to Achieve Compliance With the Act .................. 8

V. The Seventh Circuit’s Decision is

Contrary to the Clean Water Act and

the Combined Sewer Overflow Policy............... 10

4 z OER RA AD OMAD ORI :

V1. The Adverse Financial Impact of

Invalidating Government

Enforcement Approaches for CSO

Communities is Substantial ...............cccccscesseseees 13

PE AI scccccninsia ciitinnincitnitshnngannsianiniiinniateaniaibivl 16

TABLE OF AUTHORITIES

CASES:

Atlantic States Legal Found. Inc v. Eastman Kodak

Co., 933 F.2d 124, 127-28 (2™ Cir. 1991) ......ssescssseees 4,8

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49, 60 (1987) ..........0 4,10, 16

STATUTES AND REGULATORY PROVISIONS:

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Be Cs © Fe sneitvinthtincisnininbhiardicinteaicinniaaiiiapanpaiahie 7

Fe OR, TONG, 0 TED cvintcsinistitintennninasceseinsiiainnsamaiepeiani 11

SP FR, FAO. OE CE cies cnevcscntnnensisssnnntessiinionnsivaiinensnatiinininia 11

OTHER AUTHORITIES:

Breaking the Vicious Circle: Toward Effective Risk

Regulation, Stephen Breyer, 28 (Harvard Univ. Press

SDD cccssenvarstsiciicantiiusimitblisapisicstiiilaiianiaiinlviadiiuianabiiasilseniin 5

DOJ/EPA Memorandum on Negotiation of Combined

Sewer Overflow Consent Decrees dated September 16,

S. Rep. No. 92-414, p. 64 (1971), reprinted in A

Legislative History of the Water Pollution Control Act

Amendments of 1972, p.1482 (1973). ........cscccsscsseeseeeeeees 5

ill

U.S. Environmental Protection Agency August 2004

Report to Congress on Impacts and Control of CSOs

OG FFG cxcscunenseremnneavitienntinnisishsiinaiibadiiianiaiiiaes 13, 14, 15

INTEREST OF AMICUS

The CSO Partnership is a national association of

communities with combined sewer systems. Partnership

members have been recognized for years by the U.S.

Environmental Protection Agency and by states for their

proactive compliance programs. The Partnership

participated in the development of EPA’s national combined

sewer overflow policy (“ the CSO Policy”) and led the effort

to have the CSO Policy incorporated into the Clean Water

Act (the “Act”), 33 U.S.C. § 1342(q).

Many of the Partnership members have more advanced

combined sewer overflow (“CSO”) control programs than

their peer communities nationwide. Most Partnership

members have either negotiated state or federal enforcement

mechanisms to implement their CSO long-term control plans

or they are in the process of doing so. The state and/or

federal settlement agreements Partnership members have

entered into were not developed consistent with the Seventh

Circuit's “no realistic prospect” standard. Accordingly, the

significant public investments made to date by Partnership

members pursuant to these agreements following agency

enforcement actions could be jeopardized by intrusive citizen

suits that would be permissible under this standard.

Moreover, Partnership members’ ability to arrive at final

long-term control plans (“LTCPs”) with federal and state

enforcement agencies would be subject to the Seventh

Circuit’s “no realistic prospect” test rather than the more

deferential tests adopted by other federal circuit courts.

SUMMARY OF ARGUMENT

Certiorari should be granted in this case to correct the

Seventh Circuit’s erroneous ruling that government

enforcement actions must ensure “no realistic prospect” of

future violations in order to preclude citizen actions under

the Clean Water Act for the same alleged non-compliance.

The Seventh Circuit’s ruling in this regard is erroneous for

the following reasons: .

The Seventh Circuit’s “no realistic prospect”

standard under the Act impermissibly and incorrectly

adopts and expands Second Circuit precedent. The

Seventh Circuit and Second Circuit standard for

judging when a state is diligently prosecuting

conflicts with cases from the First, Sixth and Eighth

Circuits and a prior decision of this Court;

The standard precludes essential iterative or phased

solutions to achieving compliance with the Act;

The standard requires the district court to accord only

“some” deference to government enforcement

decisions and—upsets the Act’s scheme of giving

primary enforcement authority to states and the

federal government.

The standard is based upon the misreading of the Act

as requiring the elimination of overflows rather than

the control of overflows. Notably, the Act only

requires the elimination of dry weather overflows and

not the wet weather overflows that are at issue in this

case; and

It would allow and encourage a reopening of existing

agency enforcement actions adopted by courts

nationwide by citizen groups, to the detriment of the

massive public investments made in reliance on those

actions.

Based upon the foregoing, the CSO Partnership urges the

Court to grant certiorari to review the decision of the

Seventh Circuit in this case. Certiorari is necessary to

resolve the conflict between the circuits over the proper

enforcement of the Act, and avoid creating uncertainty over

tens of billions of public dollars being invested to control

sewer overflows.

ARGUMENT

I. THE SEVENTH CIRCUIT’S RULING THAT

THE DILIGENT PROSECUTION BAR

ONLY APPLIES WHEN GOVERNMENT

ACTION GUARANTEES NO FUTURE

VIOLATIONS WILL OCCUR CONFLICTS

WITH THE DECISIONS OF OTHER

CIRCUITS AND A PRIOR DECISION OF

THIS COURT.

In remanding the case to the district court, the Seventh

Circuit pronounced a standard for determining when a

governmental action will constitute diligent prosecution

and thereby bar a plaintiff’s citizens’ suit under the Act.

The Court ruled that plaintiffs’ suit may proceed if the

district court concludes that “there is a realistic prospect

that violations due to the same underlying causes,”

purportedly addressed by the State of Wisconsin’s action

against Milwaukee, “will continue after the planned

improvements are completed.” Pet. App. 33a. In other

words, only if the district court finds that the Wisconsin-

Milwaukee state court decree guarantees that future

violations will not occur will the State action cut off the

citizens’ suit.

The Seventh Circuit’s “no realistic prospect” standard is

not found anywhere in the Act and fundamentally disrupts

the enforcement structure of the Act.’ Under the Act,

federal and delegated state agencies have primacy in

enforcement, with citizen suits allowed only where the

government declines to act or to where the citizen suit

supplements the reach of government enforcement. The

Seventh Circuit standard would impermissibly disrupt this

fundamental statutory construct by allowing citizen suits

where the governmental agencies decided to act, but not to

the extent (according to citizen plaintiffs and federal

judges) of preventing a “realistic prospect” of continuing

violations. Nowhere is this immense intrusion into agency

enforcement countenanced in the Act and, in fact, this

approach is in direct conflict with this Court’s decision in

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49, 60 (1987), which

recognized that “the citizen suit provision is meant to

supplement rather than to supplant governmental action,”

as petitioner explains in its petition. Pet. 11-13.

Il. THE SEVENTH CIRCUIT’S RULING WILL

PRECLUDE ESSENTIAL PHASED OR

ITERATIVE APPROACHES BY

GOVERNMENT ENFORCEMENT.

The Seventh Circuit’s “no realistic prospect” standard is

not only inconsistent with the express structure of the

' The Seventh Circuit's decision extends and significantly expands a

decision by the Second Circuit which created — out of whole cloth — the

“realistic prospect” requirement that government enforcement will cause

the violations to cease before government enforcement would cut off

citizen suits. See Atlantic States Legal Found. Inc. v. Eastman Kodak

Co., 933 F.2¢ 124, 127-28 (2™ Cir. 1991). As petitioner sets forth in its

petition for writ of certiorari, these decisions by the Seventh and Second

Circuits conflict with decisions by the First, Sixth, and Eighth Circuits.

Pet. at 20-26.

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enforcement provisions of the Act, but it would effectively

preclude phased or iterative governmental approaches to

compelling compliance. Instead of imposing phased

solutions, delegated state agencies and EPA would be

forced to always seek ultimate solutions, even when doing

so would require the crafting of highly speculative

injunctive relief to be implemented over decades.

That is neither contemplated nor required under the Act.

Instead, the intent of the Act is that when the governmental

agency initiates an arms-length enforcement action, it cuts

off citizen involvement. As the Senate Report in the

legislative history of the Act noted, the “Committee

intends the great volume of enforcement actions [to] be

brought by the State” and that citizen suits are proper only

“if the Federal, State and local agencies fail in the exercise

of their enforcement responsibility.” S. Rep. No. 92-414,

p. 64 (1971), reprinted in A Legislative History of the

Water Pollution Control Act Amendments of 1972, p.1482

(1973). Phased and iterative approaches or solutions

imposed in arms-length actions by enforcement agencies

are routinely adopted by the courts, as they should be.

Under the Seventh Circuit’s decision, however, a

government agency that announced a phased or iterative

approach would surely fail the “no realistic prospect”

standard and thereby open the door for intrusive rather than

supplemental litigation by citizen plaintiffs.

As explained below, solutions to collection system

overflows are often the largest public works projects in

communities’ histories and can take decades to implement,

at costs for large cities like Milwaukee in the billions of

* As the Seventh Circuit noted in citing Breaking the Vicious Circle:

Toward Effective Risk Regulation, Stephen Breyer, 28 (Harvard Univ.

Press 1993), regulatory or enforcement actions requiring perfect

solutions in an effort “to achieve the last 10 percent” are often improper

expenditures of public resources. Pet. App. 31a-32a, note 15.

dollars. Thus, iterative or phased compliance approaches

are both necessary and appropriate and yet would be

precluded under the Seventh Circuit’s expanded “no

realistic prospect” standard.”

Ill. THE SEVENTH CIRCUIT’S RULING FAILS

TO ADEQUATELY DEFER TO

GOVERNMENT ENFORCEMENT

DISCRETION IN THE CRAFTING OF

ENFORCEMENT RELIEF.

Beyond impermissibly forcing governmental agencies

to craft ultimate solutions in every enforcement action and

then defend the adequacy of those solutions from attack by

citizen plaintiffs, the Seventh Circuit’s “no realistic

prospect” standard puts the federal courts in an untenable

position of second-guessing, rather than deferring to the

adequacy of injunctive relief sought by enforcement

agencies. Specifically, federal district court judges will sit

as “super agencies” to determine whether the relief sought

by governmental agencies will ensure “no realistic

prospect” of continuing violations.

These courts will be asked to speculate about the

potential for sewer overflows in a community after

potentially decades of work called for in state or federal

enforcement actions. Moreover, where state or federal

enforcers properly admit uncertainty about ultimate

solutions and, instead of speculating with public funds,

3 While the judicial creation of the “no realistic prospect” standard

conflicts with the Act’s enforcement scheme in any context, it is one

thing to apply such a standard to discharges from Eastman Kodak’s very

carefully controlled manufacturing operation at its one industrial facility

in Rochester, New York and entirely another for the Seventh Circuit to

apply such a standard to how the sewers in the greater Milwaukee area

will respond to large future rainfall events. Atlantic States Legal

Foundation, 933 F. 2d at 125.

seek to impose a phased solution, the court will be required

under the “no realistic prospect” test to allow a citizen suit

to proceed to force the very additional controls which the

agencies did not believe could or should be ascertained at

this time. This approach impermissibly and unreasonably

allows citizen plaintiffs to intrude in, rather than

supplement, agency enforcement.

Citizen plaintiffs who may be unhappy with the

intensity of governmental enforcement are supposed to

wait until after the government mandated relief is

implemented beiore seeking to have the federal courts

impose additional measures. This does not mean that

citizen plaintiffs cannot bring a challenge to the adequacy

of federal enforcement actions. A federal consent decree

must be lodged with the approving court for public notice

and comment pursuant to 28 C.F.R. § 50.7, giving citizens

an opportunity to challenge whether the agency is

requiring adequate injunctive relief over the period

addressed by the agency’s enforcement action. Nothing in

the Act prohibits an agency from imposing phased or

iterative enforcement solutions if, in the agency’s

expertise, such an approach is necessary and appropriate.

Beyond the Seventh Circuit’s writing into the Act of the

“no realistic prospect” approach, the Court also creates a

new standard of review of agency enforcement action.

Specifically, instead giving deference to a state’s

enforcement action, the Seventh Circuit instructs the

federal district court to accord only “some deference to the

judgment of the State.” Pet. App. 33a. This is a significant

departure from the careful enforcement scheme established

in the Act and should be corrected through a grant of

certiorari. This lesser degree of deference is particularly

inappropriate given the fact that the states in these cases

will have already taken enforcement and the citizen’s role

at that point becomes supplementary. Accordingly, in

these circumstances, logic dictates that the enforcement

agencies receive greater rather than lesser deference from

the courts.

IV. THE SEVENTH CIRCUIT’S RULING IS

IMPRACTICAL BECAUSE SOLUTIONS TO

MANY SEWER OVERFLOW CASES WILL

REQUIRE DECADES OF WORK AND

CONSTANT PROGRAMMATIC

RENAVIGATION TO ACHIEVE

COMPLIANCE WITH THE ACT.

Combined sewer systems were among the earliest sewer

systems constructed in the United States and were built

until the earliest part of the 20" century. Projects designed

and constructed to control sewer overflows typically

involve the largest public works projects in communities’

histories. These massive public works projects cannot be

implemented overnight and almost always require periodic

renavigation. In general, the renovation of aging systems

requires installing a new generation of sewer infrastructure

beneath America’s urban core communities.

Consent decrees addressing sewer overflows are, by

necessity, iterative documents setting forth procedures for

adjustments over time and are a work in progress aimed at

achieving appropriate controls in a fiscally responsible

manner. Such consent decrees generally set forth a

schedule for completing certain planned construction

projects, leaving certain future decisions to be made after

the progress of initial projects is evaluated. For example,

the following provision related to sanitary sewer overflows

(“SSO’s”) is contained in a 2003 consent decree entered by

the U.S. District Court for the Southern District of Ohio:

WHEREAS, the SSO decree includes explicit

recognition of the need expeditiously to

commence discussions’ regarding _ global

solutions to address the remaining sewer system

issues, and further recognizes that because the

schedule for implementing the remaining

remedial measures that are to be proposed under

the Capacity Assurance Program Plan required

by the SSO decree is related to certain other

sewer system solutions, the SSO Decree neither

requires implementation of, nor provides a final

construction completion date for, the SSO

remedial measures that will be proposed under

the Capacity Assurance Program Plan pursuant

to the SSO Decree“

This paragraph is a perfect example of the iterative

approach that is typically taken when agencies seek to

impose sewer overflow control requirements in decrees.

Such an acknowledgement does not meet the Seventh

Circuit’s “no realistic prospect” test of whether future

violations will occur, because this is an admission that the

planning necessary to address ongoing violations has yet to

occur. The public solutions here are as of yet unknown.

In these circumstances, the Seventh Circuit’s “realistic

prospect” test would allow a citizen suit to be maintained

to force a solution that is not yet ripe. In the context of wet

weather-related sewer overflows, there are diminishing

returns — significantly higher costs associated with

controlling the last few overflows from the largest storm

events. We cannot imagine a greater intrusion on agency

enforcement primacy than allowing a citizen group to force

a premature and speculative solution to a substantially

unknown set of facts that will not be presented for possibly

decades.

“See http://www. msdgc.org/downloads/consent_decree/global_cd_signed

-paf

If courts were to mandate that only consent decrees

which at the outset guarantee no future overflows will

occur could receive court approval, future consent decrees

would not be possible, and already negotiated and

approved decrees would be subject to being overturned by

citizen suits filed by groups seeking to undo the relief

already negotiated. It is contrary to this Court's decision in

Gwaltney to allow citizen groups to interfere with agency

enforcement actions that have been negotiated and are

being implemented. Such intrusive actions will, contrary to

the Act and this Court’s precedent, preclude affordable and

cost-effective public CSO and SSO controls.

In all cases, sewer overflow control is achieved using

public dollars -- literally billions of them. The federal

courts should be loathe to create any standard that would -

require speculative commitments of public funds at the

behest of citizen groups who are too impatient to await the

outcome of the implementation of arms-length government

enforcement.

V. THE SEVENTH CIRCUIT’S DECISION IS

CONTRARY TO THE CLEAN WATER ACT

AND THE COMBINED SEWER

OVERFLOW POLICY.

In reaching its decision to reverse the district court and

find that the federal citizens’ suit was not barred, the Seventh

Circuit relied on an incorrect reading the Clean Water Act’s

provision on combined sewer overflows. 33 U.S.C. §

1342(q). The Court wrongly determined that the Act

requires the “elimination of overflows,” not just their

reduction. Pet. App. 30a-31a. Reviewing only the record in

the case, the Court stated “we do not feel confident” that the

agreement will result in the “elimination” of the overflows

and thus found that the 2002 Stipulation, which did not call

10

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for the elimination of all future overflows, was contrary to

the Act. Pet. App. 31a.

The Court’s view that all combined sewer overflows must

be eliminated in order for a prosecution to be diligent is

flatly contradicted by the CSO Policy which was

incorporated by reference into Section 1342(q) of the Act.

The CSO Policy does not mandate the elimination of all

overflows and, in fact, expressly contemplates that entities

using best management practices and being in full

compliance with the policy will, in most cases, be unable to

completely eliminate overflows. The purpose of the policy,

as the name implies, is the control of overflows, not the total

elimination of all overflows at any cost. The policy

recognizes that CSO systems “overflow as a result of wet

weather systems” and the policy provides “targets” for CSO

“controls” and calls for a coordinated planning effort to

achieve “cost effective controls.” 59 Fed. Reg. at 18688.

Finally, the policy provides for the “necessary flexibility to

tailor controls to local situations.” 59 Fed. Reg. at 18688.

Moreover, section II.4.a of the CSO Policy lays out

several compliance options, including, for example, one that

would expressly authorize up to six residual CSOs a year.

59 Fed. Reg. at 18692. In fact, while the CSO Policy calls

for the elimination of dry weather overflows from a

combined sewer system it expressly only requires the control

of wet weather overflows. The CSO Policy expressly

acknowledges that it may be impracticable technically and

financially to remove or relocate CSO discharges away from

even “sensitive” areas such as stream segments above public

drinking water intakes. 59 Fed. Reg.:at 18692.

With regard to wet weather overflows, one of the four key

principles of the CSO Policy is that:

11

State water quality standards authorities will be

involved in the long-term CSO control planning

effort as well. The water quality standards

authorities will help ensure that development of

the CSO permittees' long-term CSO control plans

are coordinated with the review and possible

revision of water quality standards on CSO-

impacted waters.

This means that not only are residual overflows

contemplated, as opposed to the total elimination sought by

the Seventh Circuit, but that state designated uses and water

quality standards are envisioned to be revised to

accommodate them. This “key provision” of the CSO Policy

would be rendered superfluous by the Seventh Circuit's

ruling that all overflows had to be eliminated.

The United States Environmental Protection Agency and

the United States Department of Justice have recognized, in

a number of different contexts, that the CSO Policy does not

mandate the elimination of all overflows. A _ joint

Department of Justice and Environmental Protection Agency

memorandum addressing key issues arising in negotiations

of combined sewer overflow consent decrees refers to

“discharges remaining after the implementation of the

LTCP.”” Obviously, if elimination of overflows is the end-

goal of a CSO long-term control plan, then there would be

no reason to address residual overflows after the

implementation of a CSO long-term control plan.

Recent consent decrees in major combined sewer

overflow cases also demonstrate that the goal is not the total

* See DOJ/EPA Memorandum on Negotiation of Combined Sewer

Overflow Consent Decrees dated September 16, 2003, which can be

located at Attp://www.cso.com/articles-publications/publication/

guidance-negotiationsofCSOConsentDecrees. pdf

elimination of all combined sewer overflows. In a recent

Department of Justice press release announcing “a milestone

legal agreement,” resolving allegations against CSO

discharges in the District of Columbia, the Department stated

that under the settlement, 96% of the District’s CSO volume

would be captured on a system-wide basis in an average

rainfall year, thus recognizing that the complete elimination

of overflow was not feasible, especially in wet years.°

Finally, EPA’s August 2004 Report to Congress entitled

“Impacts and Control of CSOs and SSOs” provides further

support that Congress and the executive branch have

expressly recognized that the elimination of sewer overflows

is not achievable in the foreseeable future.’ Chapter Nine of

the Report addresses the resources spent to address the

impacts of CSOs and SSOs in the past and in the future.

EPA estimates that to provide primary treatment and

disinfection for 85% of combined sewer overflow volume,

the future capital financial needs alone (not including

operation and maintenance costs) of communities will be

$50.6 billion. The projected capital costs for “reducing the

frequency of SSOs caused by wet-weather and other

conditions” is estimated at $88.5 billion. Thus, EPA

expressly recognizes that even in the future with these vast

sums of money being spent on CSOs and SSOs, the best that

can be achieved are reductions in overflows, not the

elimination of them.

VI. THE ADVERSE FINANCIAL IMPACT OF

INVALIDATING AGENCY

ENFORCEMENT APPROACHES FOR CSO

COMMUNITIES IS SUBSTANTIAL.

° See http://www.usdoj.gov/enrd/DC_Sewer_Consent_Decree.pdf ;

http://www.dcwasa.com/news/listings/press_release208.cfm.

” http://cfpub.epa.gov/npdes/cso/cpolicy_report.cfm?program_id=5.

13

The Seventh Circuit's “no realistic prospect” requirement

and ruling in this case will lead to inferior environmental

solutions to sewer overflows and unnecessarily higher public

costs as enforcement agencies will require communities to

over-plan, design, and construct to meet this new judicially-

created standard.

The best way to ensure no “realistic prospect” of

continuing sewer overflows is to separate storm water flows

out of sanitary sewer lines in combined sewer communities

such as the District of Columbia. However, such an

approach results in an urban storm water discharge virtually

every day it rains, instead of other CSO solutions that may

feature wet weather storage and treatment that limit urban

wet weather discharges to a handful of days a year. The

latter is a superior result from both a human health and

environmental perspective. However, “capture and treat”

approaches are less certain than separation, such that a

federal judicial requirement of “no realistic prospect” for

future overflows will lead some communities and

enforcement agencies toward inferior but more certain

solutions such as sewer separation.

Moreover, if the federal judicial test is now “no realistic

prospect” of future overflows for a plan to pass muster in the

federal courts, rather than cost-effective phased solutions,

communities will be forced to implement greater controls

than they otherwise might under a phased approach. This

means more planning, design and enormous construction

costs -- literally billions of dollars in potentially unnecessary

investments in public infrastructure.

The 2004 EPA Report to Congress found that CSO and

SSO communities nationwide spent $535 billion between

1970 and 2000 on wastewater infrastructure. Report, p. 9-3.

EPA estimates that current annual spending from all public

sources in wastewater infrastructure is just over $13 billion a

were a

year. As noted in Section II above, EPA has estimated future

CSO spending at $50.6 billion to control 85% of CSO flows

and future SSO spending at $88.5 billion. Report p. 9-3.

Three recent consent decrees demonstrate how expensive the

upgrades to these systems are for individual communities

and the level of investments required by the cities. The most

recent settlement, which was lodged with the federal district

court in the District of Columbia on December 16, 2004, but

not yet approved, calls for the District to pay $1.4 billion to

“nearly eliminate” overflows into the Anacostia River, the

Potomac River, and Rock Creek.* The projects set forth in

the decree will take twenty years to build. In August of

2004, the City of Los Angeles agreed to a $2 billion

settlement to resolve two lawsuits filed against it concerning

sewage overflows. Under the terms of the settlement, Los

Angeles will, in part, be required to rebuild at least 488 miles

of sewer line.” Finally, in December 2003, Cincinnati agreed

to a $1.5 billion settlement to resolve allegations against it

for both CSOs and SSOs. The decree requires that

Cincinnati’s work must “be completed as expeditiously as

possible, but no later than February, 2022.”"° The Cincinnati

decree expressly acknowledges that the costs may exceed

$1.5 billion, in which case additional time would be allowed

under the decree.

If the Seventh Circuit’s decision is not overturned and

other courts were to adopt a similar standard when deciding

whether a case has been diligently prosecuted, communities

will face difficult and costly choices about whether to

negotiate consent decrees with governmental authorities

given that they may still be subject to suits from citizen

groups even after promising to pay enormous sums of money

to update their sewer systems. Cities will be discouraged

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15

from entering into settlements with state or federal

regulatory agencies because they will be asked to develop

plans that ensure no realistic prospect of violation, which

will call for gross speculation on the communities’ part with

massive amounts of public funds. In cases where decrees are

negotiated, cities will have little protection from lawsuits by

citizen groups second-guessing the governmental agencies

and arguing for other remedial measures, when expensive

projects have already been committed to. Under the Seventh

Circuit’s ruling those lawsuits will require detailed fact

finding by the courts with only some deference to EPA or its

state counterpart. If nothing else this litigation will delay the

implementation of injunctive relief imposed by the

- enforcement agencies. This is not how Congress intended

the citizen suit provision under the Act to be applied.

CONCLUSION

The Court should grant the petition for writ of certiorari to

resolve the heightened conflict between the circuit courts

addressing when an enforcement agency is diligently

prosecuting under the Act. This issue was not fully

addressed in the Court’s Gwaltney decision. Resolution of

this question will affect the investment of tens of billions of

public dollars in sewer overflow control programs across the

country.

Respectfully submitted,

JOHN A. SHEEHAN*

F. PAUL CALAMITA

AquaLaw PLC

801 E. Main St., Suite 1002

Richmond, VA. 23219

(804) 716-9021

* Counsel of Record Attorneys for CSO Partnership

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