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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1256%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 913

## Text

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

ps EC iil
PCIE GO SATA FOIE cccssccannnscnsctncesccassectsceesidassescesties |
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:

BOTTI BS eiesstsanstchisiniappinniastantaviciumniaiptaaias 10, 11
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.

PNG fe REIT

a ee
LOTR POR RP LOOM LLNS LEE ORIEL TES m oy

RS ha ATTA por Yarn eit te

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

ange en een peer

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

. » Mp: //www.usdoj.gov/opa/pr/2004/December/04_enrd_793.htm
* http://www.usdoj.gov/opa/pr/2004/Augus/04_enrd ) 542. htm
'° netp://www.usdoj. pee, enrd_660.htm

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

oars ‘ ee . ‘ 8 = — .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1256%3A5. Public record. Not legal advice.