Russian River Watershed Protection Committee v. City of Santa Rosa, 97-15179

Citation142 F.3d 1136
Decision Date24 April 1998
Docket NumberNo. 97-15179,97-15179
Parties, 28 Envtl. L. Rep. 21,265, 98 Cal. Daily Op. Serv. 3088, 98 Daily Journal D.A.R. 4255 RUSSIAN RIVER WATERSHED PROTECTION COMMITTEE; Brenda Adelman, Plaintiffs-Appellants, v. CITY OF SANTA ROSA, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Jack Silver, Silver & Silver, Santa Rosa, California, for Plaintiffs-Appellants.

Rene Auguste Chouteau, City Attorney, Santa Rosa, California, for Defendant-Appellee.

Daniel E. Lungren, Attorney General, Clifford T. Lee, Deputy Attorney General, San Francisco, California, for amicus curiae California State Water Resources Control Board.

David Weinsoff, San Francisco, California, for amicus curiae San Francisco BayKeeper.

Appeal from the United States District Court for the Northern District of California; Samuel Conti, District Judge, Presiding. D.C. No. CV 95-1550 SC.

Before: SCHROEDER, FARRIS and TASHIMA, Circuit Judges.

TASHIMA, Circuit Judge:

The Russian River Watershed Protection Committee and Brenda Adelman ("appellants") appeal from a judgment entered in favor of the City of Santa Rosa (the "City") after a bench trial in this Clean Water Act case. On appeal, appellants contend that the City's method of determining compliance with its National Pollutant Discharge Elimination System permits ("NPDES permits" or "permits") violated the terms of those permits and the Clean Water Act. They also contend that the district court erred in finding that they did not have standing under the Clean Water Act. Because the NPDES permits do not establish a method of determining compliance, we hold that the Executive Officer of the Regional Board had the discretion under California Water Code section 13223(a) to determine a method of compliance with the permits. We also affirm the district court's decision that appellants lacked standing under the Clean Water Act.

I. BACKGROUND
A. Statutory Framework

The Clean Water Act regulates the discharge of pollutants into navigable waters, prohibiting their discharge unless certain statutory exceptions apply. 33 U.S.C. § 1311(a). One such exception is where the polluter has been issued an NPDES permit. 33 U.S.C. § 1342. The effluent discharge standards or limitations specified in an NPDES permit define the scope of the authorized exception to the prohibition in section 1311(a). Authority to administer the NPDES permit system may be delegated to a state or regional agency where the state or regional regulatory scheme meets certain criteria. 33 U.S.C. § 1342(b). The entity responsible for issuing permits in the Santa Rosa area is the California North Coast Regional Water Quality Control Board (the "Regional Board"). The Regional Board is established pursuant to the Porter-Cologne Water Quality Control Act, Cal. Water Code § 13000 et seq., and enforces the provisions of that statute as well. Private citizens may bring suit pursuant to 33 U.S.C. § 1365 to enforce effluent standards or limitations, which are defined to include violations of NPDES permits. 33 U.S.C. § 1365(f)(1). Thus, private citizens may bring suit under the Clean Water Act to enforce the standards set out in NPDES permits.

B. Factual Background

The City operates a wastewater treatment system serving various cities and areas in Sonoma County, California. The system's main plant is the Laguna Subregional Wastewater Treatment Plant (the "Laguna Plant") which is located outside the City adjacent to the Laguna de Santa Rosa, a tributary of the Russian River. This plant is considered a major discharger, as defined by the Environmental Protection Agency. The Laguna Plant is a modern facility which treats sewage from participating communities at an advanced level referred to as the tertiary level. Sewage passes through various basins and clarifiers which provide treatment to the secondary level before achieving tertiary level treatment through filtration and disinfection. The sewage reclaimed through this process is authorized for irrigation of food crops, golf courses and school playfields. During the summer, all reclaimed water is used for irrigation and during the winter it is released into the Russian River.

The Regional Board issued NPDES permits to the City in 1986, 1990 and 1995. The 1990 and 1995 NPDES permits are substantially similar, both containing discharge prohibitions, numeric effluent limitations, receiving water limitations, and requirements for solids disposal, pretreatment of industrial waste, and monitoring and reporting.

The permits prohibit the discharge of reclaimed water during the summer irrigation season, from May 15 through September 30. Between October 1 through May 14, the City may discharge one percent of the flow of the Russian River after it initially reaches a flow of 1,000 cubic feet per second ("cfs"). The permits state that the 1,000 cfs is to be measured by the gauge at the Hacienda Bridge. The permits do not specify how the flow is to be measured. The discharge is released into the Laguna de Santa Rosa, eight to twelve miles above the gauge at Hacienda Bridge, and takes from one to five days to reach the bridge.

In accordance with California Water Code section 13223(a), the Regional Board delegated all powers authorized by that statute to its Executive Officer. The Executive Officer devised a method known as the "seven-day averaging method" for measuring allowable discharge which has been used throughout the terms of the 1990 and 1995 NPDES permits. Under this method, discharge rates are determined by basing the daily discharge rate on the previous day's highest hourly flow (recorded at Hacienda Bridge). Discharge percentages are then calculated as a weekly average.

The permits set limitations on the discharge of effluents, such as chlorine, coliform and hydrogen ions, from the treated water. The permits state a minimum value of 1.5 mg/1 for chlorine residual and requires that this minimum value "be maintained at the end of the chlorine contact chamber." There are three such chambers at the Laguna Plant. The Executive Officer determined that coliform and chlorine would be monitored by taking samples at the end of one of three chlorine contact chambers.

C. Procedural Background

In 1994, after examining the self-monitoring reports of the City, Adelman believed that the City was violating its NPDES permit by (1) discharging treated wastewater in excess of the limits stated in the permit, and (2) not monitoring coliform or chlorine as required by the permit. She notified the Regional Board of her concerns and learned about the City's method for calculating discharge which she alleges had not been discussed at any public hearing.

On February 21, 1995, appellants sent the City a 60-day notice of violations and intent to file suit, as required by the Clean Water Act. See 33 U.S.C. § 1365(b)(1)(A). They filed suit in district court on May 9, 1995, alleging that the City was in violation of its NPDES permit. Appellants sought injunctive relief, civil penalties, costs, and reasonable attorney's fees under 33 U.S.C. § 1365(d). The City filed a motion to dismiss or in the alternative a motion for summary judgment based on appellants' lack of standing to sue because of their inability to allege continuing or recurrent violations of the Clean Water Act. The district court denied both motions. It later granted a motion by appellants to bifurcate the trial into a liability phase and a penalty phase.

The district court conducted two bench trials. The first was limited to determining the proper method for measuring compliance with the NPDES permit. After that trial, the district court made findings of fact and conclusions of law which determined that neither the 1990 nor the 1995 NPDES permit specified the manner in which compliance with the discharge requirements were to be calculated. The court further found that no direct temporal correlation existed between the amount discharged and the flow of the river at the Hacienda Bridge. Further, the court found that the gauge at the Hacienda Bridge specified in the permits only measures the height of the river and not the flow volume. Based on these and other findings of fact, the district court concluded that the Executive Officer of the Regional Board has authority under the Porter-Cologne Water Quality Control Act to establish reasonable procedures for measuring compliance with NPDES permits. The court concluded that the procedure established by the Executive Officer was reasonable.

Appellants argued that the City violated their permit by discharging in excess of one percent when the variance of the current storage was below the operations curve established to determine the capacity of the Laguna Plant's storage ponds. However, the district court concluded that "variance above the operations curve" as set out in paragraph B(3) of the permits, is merely one of the factors to be considered by the Executive Officer in deciding whether or not to grant permission to the City to discharge in excess of one percent of the flow.

Regarding the location where numeric effluent limitations are to be measured, the court found that the permits state that the chlorine residual shall be measured "at the end of the chlorine contact chamber." The court also found that the Laguna Plant uses three chlorine contact chambers and the permits do not specify multiple tests at the end of each chamber. The court further found that the sample taken at the end of one of the chambers is representative of all three. Based on these and other findings of fact, the court concluded that the grab samples for chlorine and coliform are properly taken at the end of one of the three chlorine contact chambers.

At the second trial, the court considered appellants' evidence of alleged violations in light of its earlier ruling. The court issued Findings of Fact and Conclusion of Law Re Specific Alleged...

To continue reading

Request your trial
93 cases
  • Chaker v. Crogan, 03-56885.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 3, 2005
    ...this court. Accordingly, we decline to consider an argument raised only by CJLF on appeal. See Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 n. 1 (9th Cir.1998) (declining to address argument because "as [amicus curiae] candidly acknowledges, it is raised fo......
  • U.S. v. Gementera, 03-10103.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 9, 2004
    ...which are not present here, we do not address issues raised only in an amicus brief."); Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 (9th Cir.1998) (declining to address issue raised by amicus for first time on appeal when the appellee did not adopt th......
  • Northern Cal. River Watch v. Wilcox
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • January 26, 2011
    ...adjacent to the Laguna de Santa Rosa, a tributary of the Russian River. Id. at 1073; see also Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1139 (9th Cir.1998). The Russian River, as the parties acknowledge, is a navigable water of the United States. See N. Cal. ......
  • Golden Gate Restaurant v. San Francisco, 07-17370.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 30, 2008
    ...court and when they are in tension with the strategic positions taken by the litigants. See Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 n. 1 (9th Cir. 1998). Further, we need not consider arguments raised for the first time on appeal. Choe v. Torres, 525 F......
  • Request a trial to view additional results
4 books & journal articles
  • Plain Meaning, Precedent, and Metaphysics: Interpreting the 'Pollutant' Element of the Federal Water Pollution Offense
    • United States
    • Environmental Law Reporter No. 44-11, November 2014
    • November 1, 2014
    ...in terms of both maximum levels and minimum levels in POTW eluent. See Russian River Watershed Prot. Comm. v. City of Santa Rosa , 142 F.3d 1136, 1139, 28 ELR 21265 (9th Cir. 1998). he maximum level, of course, protects life in the receiving water. he minimum level ensures that the POTW is ......
  • The Second Theme in Congress' Restructuring of the Federal Water Pollution Control Act: The Addition of Citizen Participation and Citizen Suits
    • United States
    • The Clean Water Act and the Constitution. Legal Structure and the Public's Right to a Clean and Healthy Environment Part II
    • April 20, 2009
    ...Inc., 897 F.2d 1128, 1134, 1136, 20 ELR 20788 (11th Cir. 1990). 111. Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1143, 28 ELR 21265 (9th Cir. 1998); Natural Resources Defense Council v. Texaco Ref. & Mktg., 2 F.3d 493, 498-501, 23 ELR 21328 (3d Cir. 1993);......
  • Pollutant
    • United States
    • Plain meaning, precedent, and metaphysics: interpreting the elements of the clean water act offense
    • October 24, 2017
    ...in terms of both maximum levels and minimum levels in POTW eluent. See Russian River Watershed Prot. Comm. v. City of Santa Rosa , 142 F.3d 1136, 1139, 28 ELR 21265 (9th Cir. 1998). he maximum level, of course, protects life in the receiving water. he minimum level ensures that the POTW is ......
  • Case summaries.
    • United States
    • Environmental Law Vol. 29 No. 3, September 1999
    • September 22, 1999
    ...Corps of Engineers, 151 F.3d 1162 (9th Cir. 1998), supra Part I.B.1 Russian River Watershed Protection Committee v. City of Santa Rosa, 142 F.3d 1136 (9th Cir. In this case, the Ninth Circuit denied standing to a citizens' group that claimed that the City of Santa Rosa, California, was viol......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT