In this case, the Ninth Circuit denied standing to a citizens' group that claimed that the City of Santa Rosa, California, was violating provisions of its permit under the National Pollutant Discharge Elimination System (NPDES) of the Clean Water Act (CWA). The court held that the district court had not committed clear error in finding that the city's methods of measuring compliance were reasonable and did not violate its permit, and that the citizens' group did not have standing because it was unable to prove the likelihood of continuing or recurrent violations of the CWA at the city's waste water treatment plant.
Under the CWA, discharge of pollutants into the navigable waters of the United States is regulated under the NPDES permit system. In most cases, entities that discharge pollutants must obtain a permit from the authorized state or federal agency that specifies discharge prohibitions, effluent limitations, and other treatment and monitoring requirements. Here, the entity charged with issuing NPDES permits in the Santa Rosa area is the California North Coast Regional Water Quality Control Board (Board), established pursuant to California law. The Board issued the NPDES permits at issue in this litigation to the city in 1986, 1990, and 1996 in order to regulate discharges from the city's main wastewater treatment plant (the Laguna Plant). The permits contained discharge prohibitions; numeric effluent limitations; receiving water limitations; and requirements for solids disposal, pretreatment of industrial waste, monitoring, and reporting.
In 1995, the plaintiffs filed suit under the Clean Water Act, alleging that the city was in violation of its permit. Plaintiffs alleged that the city was continually and repeatedly violating its NPDES permit, but the district court rejected this allegation. The district court also found that because the plaintiffs could not show a likelihood of recurring violations, they lacked standing to bring suit under the CWA. On appeal, the Ninth Circuit affirmed the findings of the district court.
First, the appellants alleged that the city's method of measuring compliance with the discharge requirements was improper and resulted in discharge of wastewater in excess of the permit limitations. The executive officer of the Board had developed a "seven-day averaging method" for measuring allowable discharge rates. The Ninth Circuit found no clear error in the district court's determination that the city's compliance monitoring scheme was a reasonable interpretation of the permit's requirements, because the permit did not indicate the manner by which to calculate discharge requirements. In the absence of a specified method, the district court had properly held that the city's method was reasonable in light of the evidence showing that this technique was chosen because 1) it accounted for irregularities in the discharge system, 2) was workable, and 3) was chosen after comparison of a number of other methods. The appellate court noted that "[i]n sum, [plaintiffs'] argument boils down to their dissatisfaction with the method used by the City to calculate compliance with the NPDES permits . . . . They prefer a daily monitoring system to the seven-day averaging method selected . . . . [Their] preference, however, is unsupported by any showing that the seven-day averaging method is improper."
Second, plaintiffs alleged that the city had failed to monitor final effluent chlorine and coliform organisms as required by the permit. The city had monitored chlorine and coliform by taking samples at the end of one of three chlorine contact chambers. Citing permit language that required that measurements be taken "'at the end of the chlorine contact chamber,'" the district court found that the permit did not require multiple tests at the end of each chamber. The Ninth Circuit affirmed this finding, noting that the evidence showed that tests taken at one chamber were representative of chlorine and coliform levels in all three chambers.
Third, plaintiffs argued that the executive officer lacked authority to determine the method of compliance with the permit and that this determination constituted a modification of the permit. However, the Ninth Circuit noted that under California law, the Board was authorized to delegate this power to its executive officer. Furthermore, the court noted that establishing a method of compliance with a permit does not constitute a modification of the permit under federal law.
After dispensing with the merits of the case, the Ninth Circuit affirmed the district court's determination that the plaintiffs lacked standing. The court noted that under the Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, citizens may not sue under the CWA for wholly past violations. Plaintiffs could not pursue their claims against the city because they could not prove the existence of either ongoing violations or the reasonable likelihood of continuing future violations of the city's NPDES permit. Finally, the Ninth Circuit also affirmed the district court's award of costs to the city pursuant to the Federal Rules of Civil Procedure.