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97–933 PDF 2005

ARE CITIZEN SUIT PROVISIONS OF

THE CLEAN WATER ACT BEING MISUSED?

(108–87)

HEARING

BEFORE THE

SUBCOMMITTEE ON

WATER RESOURCES AND ENVIRONMENT

OF THE

COMMITTEE ON

TRANSPORTATION AND

INFRASTRUCTURE

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

SEPTEMBER 30, 2004

Printed for the use of the

Committee on Transportation and Infrastructure

(
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-Chair

SHERWOOD L. BOEHLERT, New York

HOWARD COBLE, North Carolina

JOHN J. DUNCAN, JR., Tennessee

WAYNE T. GILCHREST, Maryland

JOHN L. MICA, Florida

PETER HOEKSTRA, Michigan

JACK QUINN, New York

VERNON J. EHLERS, Michigan

SPENCER BACHUS, Alabama

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

FRANK A. LOBIONDO, New Jersey

JERRY MORAN, Kansas

GARY G. MILLER, California

JIM DEMINT, South Carolina

DOUG BEREUTER, Nebraska

JOHNNY ISAKSON, Georgia

ROBIN HAYES, North Carolina

ROB SIMMONS, Connecticut

SHELLEY MOORE CAPITO, West Virginia

HENRY E. BROWN, JR., South Carolina

TIMOTHY V. JOHNSON, Illinois

DENNIS R. REHBERG, Montana

TODD RUSSELL PLATTS, Pennsylvania

SAM GRAVES, Missouri

MARK R. KENNEDY, Minnesota

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

CHRIS CHOCOLA, Indiana

BOB BEAUPREZ, Colorado

MICHAEL C. BURGESS, Texas

MAX BURNS, Georgia

STEVAN PEARCE, New Mexico

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

JON C. PORTER, Nevada

VACANCY

JAMES L. OBERSTAR, Minnesota

NICK J. RAHALL, II, West Virginia

WILLIAM O. LIPINSKI, Illinois

PETER A. DEFAZIO, Oregon

JERRY F. COSTELLO, Illinois

ELEANOR HOLMES NORTON, District of

Columbia

JERROLD NADLER, New York

ROBERT MENENDEZ, New Jersey

CORRINE BROWN, Florida

BOB FILNER, California

EDDIE BERNICE JOHNSON, Texas

GENE TAYLOR, Mississippi

JUANITA MILLENDER-MCDONALD,

California

ELIJAH E. CUMMINGS, Maryland

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

LEONARD L. BOSWELL, Iowa

TIM HOLDEN, Pennsylvania

NICK LAMPSON, Texas

BRIAN BAIRD, Washington

SHELLEY BERKLEY, Nevada

BRAD CARSON, Oklahoma

JIM MATHESON, Utah

MICHAEL M. HONDA, California

RICK LARSEN, Washington

MICHAEL E. CAPUANO, Massachusetts

ANTHONY D. WEINER, New York

JULIA CARSON, Indiana

JOSEPH M. HOEFFEL, Pennsylvania

MIKE THOMPSON, California

TIMOTHY H. BISHOP, New York

MICHAEL H. MICHAUD, Maine

LINCOLN DAVIS, Tennessee

(II)
SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

JOHN J. DUNCAN, JR., Tennessee, Chairman

SHERWOOD L. BOEHLERT, New York

WAYNE T. GILCHREST, Maryland

VERNON J. EHLERS, Michigan

STEVEN C. LATOURETTE, Ohio

SUE W. KELLY, New York

RICHARD H. BAKER, Louisiana

ROBERT W. NEY, Ohio

GARY G. MILLER, California

JOHNNY ISAKSON, Georgia

ROBIN HAYES, North Carolina

HENRY E. BROWN, JR., South Carolina

BILL SHUSTER, Pennsylvania

JOHN BOOZMAN, Arkansas

CHRIS CHOCOLA, Indiana

STEVAN PEARCE, New Mexico, Vice-Chair

JIM GERLACH, Pennsylvania

MARIO DIAZ-BALART, Florida

VACANCY

DON YOUNG, Alaska

(Ex Officio)

JERRY F. COSTELLO, Illinois

ROBERT MENENDEZ, New Jersey

GENE TAYLOR, Mississippi

NICK LAMPSON, Texas

BRIAN BAIRD, Washington

JOSEPH M. HOEFFEL, Pennsylvania

MIKE THOMPSON, California

TIMOTHY H. BISHOP, New York

LINCOLN DAVIS, Tennessee

ELEANOR HOLMES NORTON, District of

Columbia

JERROLD NADLER, New York

EDDIE BERNICE JOHNSON, Texas

EARL BLUMENAUER, Oregon

ELLEN O. TAUSCHER, California

BILL PASCRELL, JR., New Jersey

JAMES L. OBERSTAR, Minnesota

(Ex Officio)

(III)

(V)

CONTENTS

TESTIMONY

Page

Dellinger, Mark, Special Districts Administrator, Lake County, California,

accompanied by Melissa Thorme, Esquire ......................................................... 5

Melo, Hon. Jere, Mayor, City of Fort Bragg, California ....................................... 5

Westhoff, Christopher M., Esquire, Assistant City Attorney, Public Works

General Counsel, Los Angeles, California .......................................................... 5

PREPARED STATEMENT SUBMITTED BY A MEMBER OF CONGRESS

Miller, Hon. Gary G., of California ........................................................................ 34

PREPARED STATEMENTS SUBMITTED BY WITNESSES

Dellinger, Mark ........................................................................................................ 18

Melo, Hon. Jere ........................................................................................................ 25

Westhoff, Christopher M ......................................................................................... 36

ADDITIONS TO THE RECORD

California Environmental Protection Agency, Terry Tamminen, Agency Secretary, letter, September 29, 2004 ...................................................................... 44

California Regional Water Quality Control Board, California Environmental

Protection Agency, Francine Diamond, Chair, and Susan Cloke, Vice Chair,

letter, September 29, 2004 .................................................................................. 45

City of Los Angeles, Rockard J. Delgadillo, City Attorney, and other

Councilmembers, letter, September 29, 2004 .................................................... 47

Earthjustice, Environmental Integrity Project, Friends of the Earth, National

Wildlife Federation, Natural Resources Defense Council, Sierra Club, and

U.S. PIRG, letter, October 18, 2004 ................................................................... 48

Waterkeepers Alliance, Steve Fleischli, Executive Director, and Tracy

Egoscue, Executive Director, Santa Monica Baykeeper, letter, September

30, 2004 ................................................................................................................. 55

(1)

ARE CITIZEN SUIT PROVISIONS OF THE

CLEAN WATER ACT BEING MISUSED?

Thursday, September 30, 2004

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPOR- TATION AND INFRASTRUCTURE, SUBCOMMITTEE ON

WATER RESOURCES AND ENVIRONMENT WASHINGTON, D.C.

The Committee met, pursuant to call, at 10:00 a.m., in room

2167, Rayburn House Office Building, Hon. John J. Duncan, Jr.

(chairman of the committee), presiding.

Mr. DUNCAN. I would like to welcome everyone to this morning’s

hearing on Citizens Suits under the Clean Water Act. Today we

will review whether the citizen suit provisions of the Act are being

misused by some parties.

The Federal EPA and States have primary responsibility for ensuring compliance with permits and other requirements under the

Clean Water Act. The Act also allows affected citizens to file a civil

action against a party alleged to be in violation of a permit or order

in the absence of Federal or State enforcement. Congress originally

envisioned the citizen enforcement. Under the Act, citizen suit provisions could be a useful supplement to a Government agency oversight.

Citizen enforcement was not intended to replace the Government’s primary responsibility in enforcing the Act. However, it appears that citizen enforcement has taken on a life of its own in

some cases. A number of citizen lawsuits have been filed since the

enactment of the Clean Water Act in 1972. While some of these

suits have played a role in ensuring compliance, we’ve heard about

others that do little or nothing to enhance water quality.

In fact, the question is whether some of these suits are done almost exclusively or primarily for the legal fees involved. For example, some citizen suits involve violations already being remediated

in an enforcement action or remedied in an enforcement action

with Government regulators or they focus on very minor, sporadic

or technical violations.

What this hearing is really all about was probably best summarized in a story in the Press Democrat, the Santa Rosa Press Democrat. This story says the tactics of a Sonoma County environmental watchdog group and its attorney are under fire from several

north coast cities and leading environmentalists. It charges the

group is misusing environmental laws. River Watch, created in

1996 by Santa Rose attorney Jack Silver, uses provisions of the

Federal Clean Water Act to sue cities and others accused of environmental pollution.
2

The law allows Silver and River Watch to collect attorneys and

other fees if they prevail in court or persuade those being sued to

reach out of court settlements. Using the law, Silver has collected

at least $310,000 in attorneys’ fees since 2000—this was written in

2002—often, for environmental violations that were in the process

of being remedied.

A second story the next day was entitled Green Greed. That’s

what this hearing is all about, to determine whether these suits

really are doing some good or are they just simply green greed. We

also heard about citizen suits where the plaintiff uses the threat

of substantial litigation costs and penalties to exact payment of significant settlements, including, as I said, sizeable plaintiff’s attorneys’ fees from regulated parties. Recent experiences reported in

California illustrate some of these problems.

Numerous citizen lawsuits have been brought against communities in California, not just the one I read about, but others, alleging Clean Water Act violations, even though State regulators already may have taken enforcement action against these targeted

communities. Some of the suits have been brought by the same

plaintiff who has sought significant settlement payments and attorney fees from the communities. Many of the targeted communities

are small and have only limited financial resources. A number of

these communities facing the threat of very substantial litigation

costs and penalties that they cannot afford have decided to pay

cash settlements rather than litigate the issues.

As a result, plaintiffs may end up getting enriched at the expense of the community’s local citizens with little or no water quality improvements being realized. Some local critics have accused

plaintiffs of shaking down communities and businesses for cash settlements to avoid costly settlements and costly lawsuits. Such suits

divert funding from necessary infrastructure and environmental

projects.

It remains appropriate where a Government regulator is not diligently enforcing the Clean Water Act that citizen suits be available

to fill the gap. However, where Congress’s intended primary enforcers of the Act are doing their job, in this point private permit holders should be protected from duplicative or costly third party lawsuits.

Let me just conclude by saying this, that the problems our witnesses today from California and what we’ve seen—I was a lawyer

and a judge before I came to Congress—citizen suits can better

function as a supplement to government agency oversight. We’ve

sent so many millions of good jobs to other countries for so many

years now, almost everybody feels they have to go to graduate

school or law school or medical school, and there’s way too many

lawyers out there today. The law schools don’t tell these kids that

half the people getting out of law school could make more managing a McDonald’s or driving a long haul truck or something like

that.

So what happens is, when people notice certain types of litigation

in one State, they have a way of spreading all over the whole country. And it’s primarily done, as I said, to get legal fees rather than

to do actual good for the people of this country. So we’ve got to

start looking into this to make sure that this is not some kind of
3

virus that spreads all over the country, and to make sure that this

is not Green Greed, as this newspaper said, or if it is a good thing.

So that’s what this hearing is about. I thank these witnesses for

coming from such a long distance, all the way across the country,

to be here with us this morning.

I now recognize the Ranking Member, Mr. Costello.

Mr. COSTELLO. Mr. Chairman, thank you.

Mr. Chairman, I actually was asking a question here, and I

didn’t know if I heard you correctly, that there are too many students in law school today or too many lawyers, but I agree with

both. I don’t know which you said, but let me thank you for calling

the hearing today and you have summarized the topic and the

issue that we are dealing with today.

I want to thank our colleague, Mr. Thompson, who has brought

this issue to our attention on more than one occasion. Frankly, it

was because of his persistence and his request that we are holding

this hearing today. I will submit my statement for the record and

yield my time to Mr. Thompson at this time.

Mr. THOMPSON. I would like to thank the Ranking Member. Mr.

Chairman, thank you and the Ranking Member for agreeing to

hold this hearing. Also, I want to thank my constituents for traveling all the way out to Washington. I think it is emblematic of the

problem that we out in California face. We had to hold the witness

list down. There’s not anyone from any local government entity,

probably not just in California but across the country, who wouldn’t

want to come and testify on what I think is a real serious problem.

So thank you for holding this hearing. I would like to revise and

extend my statement for the record. But I would like to say this

morning that it is a real problem, and I am not against citizen lawsuits. I don’t think anyone is. If the State or the Federal Government is failing to protect the citizenry, by all means, we should file

suit to stop that practice.

But in this particular case, it’s a different situation. The State

and/or the Federal Government has already stepped in and the

problem is being addressed. But they recognize that these small

municipalities, and there’s not one in the country that is any different, don’t have the money to do all at once everything that needs

to be done. When they’re allowed to engage in administrative lawsuits, any money that goes to pay lawyers fees, or is used to fight

these cases, is money that’s taken directly away from fixing the

problem at hand and impacts the health and safety of the people

who live in these areas. That’s something that needs to be stopped.

I heard the Chairman refer to Green Greed. I’d just like to read

two excerpts from an editorial that was written in probably the

largest affected area in my district, in the Santa Rosa Press Democrat. They wrote, ‘‘Lawsuits are a tool that should be available to

the public to force blatant violators to clean up their act. But when

lawsuits are filed in response to lesser violations that have already

been acknowledged and are being corrected, there is an appearance

that the only person benefiting is the lawyer collecting the attorneys’ fees. In fact, the public may be damaged if a city is forced

to spend money on fighting a lawsuit instead of spending it on improving water quality.’’
4

In that same paper, a leading environmentalist out in California,

David Drell, who is the Director of the Willetts Environmental

Center, said that demands in a suit filed by this one entity, River

Watch, against the City of Willetts ‘‘could result in damaging the

reputation of responsible environmental advocacy in our region.’’ I

think that those two quotes hit the nail directly on the head. We

need to fix this, we need to make sure the money, every penny

that’s being spent is being spent to fix these water quality problems and protect the health and safety of the citizenry.

Mr. Chairman and Ranking Member, I thank you very much for

having this hearing. Hopefully it will lead to fixing this problem in

the long run. So thank you.

Mr. DUNCAN. Thank you very much, Mr. Thompson. You are the

first one that called our attention to this, so we’ll try to find out

what this is all about.

Mr. Miller.

Mr. MILLER. Thank you, Mr. Chairman. It’s kind of funny, my

first year in Congress I introduced a bill dealing specifically with

this issue. Because in California, it’s out of control in some areas.

You have many situations where an attorney will go to a district,

sanitation district or water agency and just file a lawsuit. They’re

meeting water quality standards, but yet the agency is forced to

settle out of court because it’s cheaper, rather than having to go

to court and defend yourself. It’s basically because of a misinterpretation of the citizen suit provision of the Clean Water Act that

we are where we are at today.

When you have an agency trying to do the right thing, and if

they are out of compliance in some small fashion and trying to

come in compliance and regulators are working with them, it’s ridiculous to do that and have to go to court at the same time.

So Mr. Chairman, I’d like to associate myself with your comments. This is really a huge issue for California, especially with

trying to provide for growth and the population demands we have

in California to begin with. We need not spend all our time in lawsuits.

I would like to introduce my statement into the record and I

would like to yield back and hear what the individuals have to say

today.

Mr. DUNCAN. All right. Your full statement will be placed into

the record, Mr. Miller.

Mr. Ehlers.

Mr. EHLERS. Thank you, Mr. Chairman. I just want to note that

I certainly support continuation of citizen suits. They’ve proved to

be very valuable. But obviously we have to deal with any abuse or

misuse of those suits. We have passed legislation through the

House to deal with frivolous lawsuits, where the party bringing the

suit would have to pay for the legal expenses of the others and also

pay some court costs.

I don’t know if that will ever see the light of day on the other

side of the rotunda, but I think it is a good idea and could be applied here. Also, we have to make certain that these are legitimate

suits and not filed just to harass a project and delay it, which is

also one misuse that has occurred upon occasion.
5

So I support the concept. I hope we can continue the citizen

suits, but let’s make sure they accomplish the goal that we intended for them, and that is to bring a solution when no community is willing to bring it to a solution. Thank you.

Mr. DUNCAN. Thank you very much.

Mr. Pearce.

Mr. PEARCE. Thank you, Mr. Chairman. As a business owner

who has watched the progression of class action lawsuits and lawsuits against just almost every small business, I can tell you that

your problem and your situation just illuminates the need for serious tort reform, because it has become an industry rather than

seeking to correct grievance. It has instead become a way to create

cash flow for trial lawyers. I just sympathize with the situation

that exists and we need to look at the underlying problems of the

entire litigious nature of our society.

Thank you, Mr. Chairman.

Mr. DUNCAN. Thank you very much.

We are very pleased to have three very distinguished witnesses

with us this morning. As I mentioned earlier, all three of these witnesses happen to be from California. We have had many witnesses

from California before, but we have never had a hearing with a

panel all three from the same State. So this is a first.

We have representing the City of Fort Bragg the Honorable Jere

Melo, who is the Mayor of that city. We have representing the California Association of Sanitation Agencies Mr. Mark Dellinger, who

is the Special Districts Administrator for Lake County, California.

We have representing the Association of Metropolitan Sewerage

Agencies Mr. Christopher M. Westhoff, who is the Assistant City

Attorney of the Department of Public Works General Counsel from

Los Angeles, California.

Gentlemen, we are pleased and honored to have all of you with

us. All the committees and subcommittees of the Congress ask the

witnesses to limit their opening statements to five minutes. In this

Subcommittee we give you six minutes. But when the six minutes

runs out, in consideration of the other witnesses and everybody’s

schedule, we cut you off. So we ask that you stop after six minutes.

Mayor Melo, we will start with you, please. Your full statements

will be placed into the record and you will be allowed to summarize

at any point that you wish to do so.

TESTIMONY OF THE HONORABLE JERE MELO, MAYOR, CITY

OF FORT BRAGG, CALIFORNIA; MARK DELLINGER, SPECIAL

DISTRICTS ADMINISTRATOR, LAKE COUNTY, CALIFORNIA,

ACCOMPANIED BY: MELISSA THORME, ESQUIRE; CHRISTOPHER M. WESTHOFF, ESQUIRE, ASSISTANT CITY ATTORNEY, PUBLIC WORKS GENERAL COUNSEL, LOS ANGELES,

CALIFORNIA

Mayor MELO. Mr. Chairman, members of the Subcommittee,

thank you and your staff for inviting me to present testimony here

today. My name is Jere Melo and I am the Mayor of the City of

Fort Bragg in Northern California.

Our city is located about 150 miles north of San Francisco, right

on the Pacific Ocean. We are a city of about 7,000 persons and we

serve a larger population of 18,000 to 20,000 persons who live and
6

work along 65 miles of the California coast. I will refer you to the

details in my written testimony, the City of Fort Bragg case study.

My participation this morning is as a small town mayor. I am

not an NPDES permit expert nor am I an expert, a legal expert on

the Clean Water Act. To get right to the point of this hearing, I

believe that the citizen suit provisions in the Clean Water Act are

being misused. We believed we were in compliance with our

NPDES permit for nearly all the alleged violations listed in the citizen complaint.

But the time and cost to defend the charges was beyond the diminished return. So we came to a settlement with the citizen group

in order to cut our losses. The group was from a city about 100

miles from Fort Bragg and located in a different county.

Fort Bragg’s experience is not unique. Nearly all the cities in our

part of California have encountered citizen suits. One particular

city, Santa Rosa, has been challenged several times, all with the

same result. Each city or sanitation district settled before the matter went to court. The potential costs of defending the suit and prevailing on all the points makes a settlement the most cost effective

solution.

And business is not exempt from the citizen suit. The citizen suit

is to some degree a job killer because it makes plants marginal due

to the increased legal costs. I am very active in environmental policy matters through the League of California Cities. I tell you that

the experience I relate to you about Fort Bragg and its neighboring

cities is becoming more frequent throughout California, as more

plaintiffs’ attorneys see the possibility of easy money in settlements, there are more threats of citizen suits. So it is a matter deserving the attention of this Subcommittee and we thank you very

much.

Earlier I indicated that the group that threatened our city with

a citizen suit is located about 100 miles away. It is also a very

small group. The membership of this group, Northern California

River Watch, seems to consist of less than ten persons. The ‘‘book’’

on River Watch is to suggest a settlement as soon as possible.

While the first reaction to a settlement is always a rejection, no

one has waited very long for settlement negotiations to begin. They

always begin with a discussion about their costs to prepare their

threat, some costs for their board members to review your plant

and your process and some funding for public groups or pet

projects.

In Fort Bragg’s case, we paid $12,000 to a River Watch selected

consultant to review our plant. In an unmitigated promotion of his

private business, his recommendation was to purchase his brand of

water treatment chemicals, the White Knight brand, as I recall.

Now this consultant is a member of the River Watch board.

Another provision was to set aside $35,000 in an educational

fund, which we did. A local group was assigned control over that.

The group has unanimously agreed to work to relocate a county

road in three locations where very substantial amounts of sediment

are placed in the Noyo River, a local river.

River Watch is objecting to the use of the funds for this work.

My best guess is that River Watch wants the $35,000 to end up in

someone’s pocket of its choosing rather than eliminating three sub-
7

stantial sources of sediment to a stream that provides habitat for

coho salmon and steelhead trout.

I would read my recommendations, sir, but it seems to match the

members of the Committee. So I will yield my time to the rest of

the speakers. Thank you, sir.

Mr. DUNCAN. Thank you very much, Mayor Melo.

Mr. Dellinger.

Mr. DELLINGER. Thank you. Good morning, Mr. Chairman, members of the Subcommittee. I am Mark Dellinger, Special Districts

Administrator for Lake County Sanitation District in Northern

California.

It is my privilege to address the Subcommittee on behalf of the

California Association of Sanitation Agencies, CASA. CASA is a

statewide non-profit association of over 100 local public agencies

that provide wastewater collection, treatment, disposal and water

recycling services to millions of Californians. Lake County Sanitation District is a member of CASA.

Citizen enforcement has played an important role in the implementation of the Clean Water Act and other environmental statutes. However, in recent years we have seen a cottage industry develop in which plaintiff’s attorneys file suit after suit against numerous local agencies, despite the fact that communities may already be taking steps to remedy violations. From CASA’s point of

view, reform is needed to ensure that citizen suits serve their intended purpose of supplementing limited Government enforcement

resources and preventing future violations.

I would like to discuss Lake County Sanitation District’s experience and close by offering possible suggestions for reform to reinforce the original intent that citizen litigation serve as a backstop.

Our sanitation district manages and operates four wastewater

treatment plants and is responsible for 200 miles of sewer collection pipes. We serve a large geographic area that is relatively rural

with a low population density.

Median household income in the communities we serve is 60 percent of the statewide average. Our board, however, recently approved a series of rate increases to raise revenues to improve our

entire system. The State regulatory agency placed one of the district’s two largest treatment systems under an enforcement order.

This requires that certain actions be taken by specified dates.

The regional board was contemplating taking similar enforcement action for the district’s southeast regional system, but it had

not yet issued an administrative order. A so-called citizen group,

Northern California River Watch, as you have already heard, sued

the district in October 2003 for alleged violations of the Clean

Water Act at both of the treatment plants and the associated sewer

collection systems.

Because the district had not yet paid monetary penalties as part

of the State enforcement and compliance actions, under Ninth Circuit case law, River Watch’s suit was not barred by Clean Water

Act section 1319(g). The district is now faced with the worst of both

worlds, expending its limited resources to defend a citizen lawsuit

and paying potentially duplicative penalties.

The important point is that in our case, and the other cases cited

in my written testimony, either the community was already acting
8

by itself or the State had already stepped in and programs were

being implemented to guard against similar future violations. The

availability of attorneys’ fees is without question a significant motivation for some third party plaintiffs to bring or threaten lawsuits.

Of all the possible reforms, revisions to the attorneys’ fees provisions of the Act are most likely to bear fruit as the availability of

these fees is what is motivating many of the abuses.

With that in mind, CASA recommends that the Subcommittee

consider the following. Limit attorneys’ fee awards to the degree of

success on the claims included in the complaint. Issue a clear statement of Congressional intent that the attorneys’ fees provision of

the Act be read as reciprocal, so that attorneys’ fees are available

to the prevailing party, period. Place a cap on the amount of fees

that may be obtained in a lawsuit against a public agency.

Congress specified that no citizen suit could be maintained where

the State or the U.S. EPA is diligently prosecuting an action

against the alleged violator. Given the time it takes to process a

State enforcement action, the fact that the State is already diligently prosecuting is not enough to bar a citizen suit. In addition,

the Ninth Circuit has determined that only a State enforcement action requiring the payment of monetary penalties will serve as a

defense to a citizen lawsuit.

In light of this, we ask the Subcommittee to consider requiring

courts to consider the improvements and actions already being undertaken by the community, either on its own initiative, or pursuant to an enforcement order, a capital improvement program or

master plan, etc. Clarifying that where the State has already taken

or is in the process of taking enforcement action for violations, citizen litigation for the same or similar violations is barred, whether

or not the State action is complete or included the assessment of

monetary penalties.

There may be other reforms suggested here today. CASA is very

appreciative of the Subcommittee’s interests and leadership in finding solutions to the citizen suit abuses. We urge the Subcommittee

to consider carefully the various options for improving the law and

ensuring that citizen suits against local governments only proceed

where they will promote real environmental solutions.

Thank you for your time. Melissa Thorme, an attorney with the

Sacramento law form of Downey Brand, and a member of CASA’s

Attorneys Committee, is here with me and we would be pleased to

answer any questions that the Subcommittee may have.

Thank you.

Mr. DUNCAN. Thank you very much, Mr. Dellinger.

Mr. Westhoff.

Mr. WESTHOFF. Good morning, Chairman Duncan, Congressman

Costello, Congressman Thompson and members of the Committee.

My name is Chris Westhoff. I am the Assistant City Attorney for

the City of Los Angeles, and I have served as General Counsel for

the city’s Department of Public Works for over 20 years. I am also

a board member of the Association of Metropolitan Sewerage Agencies, and serve as AMSA’s secretary and as chair of AMSA’s legislative policy committee. I am here testifying in that capacity.

AMSA represents nearly 300 clean water agencies across the

country. AMSA’s members treat more than 18 billion gallons of
9

wastewater each day and service the majority of U.S. sewered population. I have been asked to read a brief letter before I begin my

testimony in earnest from six elected officials in the City of Los Angeles.

‘‘Dear Chairman Duncan and Congressman Costello, on September 30th, 2004, the Water Resources Environment Subcommittee

will conduct a hearing regarding the citizen suit provisions of the

Clean Water Act, wherein reference will be made to the City of Los

Angeles’ prior lawsuit with citizen plaintiffs over sewerage issues.

The City of Los Angeles would like to express to the Committee

our ongoing support for the principles contained in the settlement

agreement for this case, which was initially brought by citizen

plaintiff, Santa Monica Baykeeper and later joined by the State of

California and the U.S. Environmental Protection Agency. The recent settlement is a win-win for everyone in Los Angeles, and the

undersigned remain committed to moving forward with a successful

rehabilitation of our sewer system and the resulting environmental

benefits from such action.’’

On behalf of AMSA, I would like to thank Chairman Duncan and

the members of this Committee for your continued commitment to

clean water issues in California and nationwide. Our Nation’s

streams, rivers, lakes and oceans are cleaner today than they have

been in over half a century. This has been accomplished by the unparalleled efforts of the many cities, special districts, municipalities

and industries that discharge treated effluent into the waters of

the United States under the Clean Water Act.

Hundreds of billions of dollars have been spent by the Federal

Government, States, industries and cities around the country to

bring our Nation’s waters to our current condition. We must continue to spend billions more to maintain the improvements we have

achieved to date and to continue moving forward in the pursuit of

improving the quality of our receiving waters.

Without question, the efforts of governmental regulators entrusted with the enforcement authority under the Clean Water Act,

and in some cases actions citizen environmental organizations,

have contributed to our national water quality improvements. However, the natural tension between appropriate governmental regulatory action and citizen enforcement frequently has placed permitted entities like my city in a losing battle.

The drafters of the Clean Water Act clearly saw governmental

enforcement against permitted dischargers as a critical element in

the ultimate success of the intent of the Act. In the Act itself, citizen enforcement was designed to play a secondary, supplementary

role allowed only when the appropriate governmental regulators

failed to diligently prosecute a permit holder for violations.

When a permitted discharger has already answered to its governmental regulator in an enforcement action, it is patently unfair for

the permit holder to be required to address the same issues in a

third party lawsuit filed under the citizen suit provisions of the

Clean Water Act. When regulators diligently enforce, citizen suits

should be precluded.

Nonetheless, Los Angeles just finished six years of litigation initially filed in 1998 by a third party citizen group. The citizen suit

was brought notwithstanding the fact that the city had settled an
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enforcement action for the same violations with our State permitting entity in the month immediately prior.

Los Angeles has the largest municipal wastewater collection system in America, which consists of close to 7,000 miles of pipe. In

the winter of 1998, Los Angeles experienced an El Nino climactic

condition which resulted in one of the wettest winters in 120 years

of recording such statistics.

Needless to say, the city’s wastewater collection system was overtaxed and experienced overflows during this rainy winter. Close to

50 million gallons of diluted wastewater spilled from the city’s

pipes in the winter of 1998.

I know 50 million gallons seems like a large number, but to give

you a frame of reference, Los Angeles transports between 165 and

190 billion gallons of wastewater a year. So even in this extraordinarily wet year, the city still only spilled less than 5/100ths of

one percent of all the wastewater collected that year and kept

99.995 percent of the wastewater in the pipes.

The city’s permitting regulator sought to enforce against the city

for these spills as well as other small spills caused by roots and

grease. In September 1998, the city agreed to settle the enforcement action by agreeing to a cease and desist order and paying a

penalty of $850,000, $200,000 in cash and $650,000 in environmental projects. Further, the city agreed to construct over $600

million in sewer improvements.

In October of the same year, a press conference was held which

announced a third party lawsuit concerning the exact same sewer

spills addressed by the cease and desist order issued by the city’s

permitting regulator one month before. To complicate matters, in

January 2001, the EPA, through the Justice Department, filed a

lawsuit covering the same spills and adding all of the small spills

that occurred between 1998 and 2001.

It is important to note than in the six years since the 1998 El

Nino winter, Los Angeles has had only four wet weather related

spills. All other spills have been from roots and grease. In the six

years since 1998, the average yearly volume of wastewater spilled

was less than one ten thousandth of one percent. That is a pretty

good batting average in any league, except the Clean Water Act.

You see, EPA’s interpretation of its own Clean Water Act regulations is that all spills from a separate sanitary collection system

are flatly prohibited, regardless of volume, cause or impact on

water quality.

EPA has publicly documented that even the best run, best maintained separate sewer system will overflow. Yet, using a strained

regulatory and legal analysis, EPA and enforcement authorities

take a strict liability approach to these inevitable overflows.

This makes every community with a separate system an easy

target for third party plaintiffs. The hard dollar cost to the City of

Los Angeles for the suit exceeded $14 million, for our attorney’s

fees, the Baykeeper’s attorney’s fees, intervenors attorney’s fees,

$800,000 in cash to the Federal Government and $8.5 million in

environmental projects.

Let me be clear. No one is asking that citizen suits go away. As

responsible environmental stewards, we realize that the citizen suit

provisions of the Clean Water Act is a powerful and necessary tool
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to fill enforcement gaps. Where a regulator is not diligently enforcing the Clean Water Act, citizen suits are critical and an important

secondary source of Clean Water Act enforcement. However, where

Congress’ intended prime Clean Water Act enforcer has done or is

doing its job, municipalities need protection from redundant third

party lawsuits that will raise the cost of the clean water services

we provide.

Let me conclude by stating that AMSA would welcome the opportunity to work with the Subcommittee and staff to discuss ways to

focus on future third party lawsuits and on trying to rectify any

problems that this Committee believes exist.

Thank you, and I will receive any questions you have.

Mr. DUNCAN. Thank you very much, all three of the witnesses

have given very fine testimony. Mr. Westhoff, I particularly appreciate what you said about the hundreds of billions that we’ve spent

cleaning up the water over the last 50 years or so. I heard a talk

a few months ago by Charlie Cook, who is probably the most respected political election analyst up here, on both sides. He said he

had never seen a figure over a billion dollars that any human being

could really comprehend, or that really made much of an effect on

them. So when you say hundreds of billions, it’s just mind boggling

how huge that is.

But it’s just amazing how much cleaner the water is today than

it was say, 30 years ago, when the Cuyahoga River caught on fire

in Cleveland. Yet there are some groups that can’t admit how much

water quality has improved. It doesn’t mean that we can stop. We

still need to do more. But these have to keep getting their contributions in, so they’ve got to continually tell everybody how bad everything is.

And you know, it’s easy to do, because as you pointed out, that

once in a lifetime probably rainfall that you had that caused a 50

million gallon overflow, somebody can go to a school and say, isn’t

that terrible, 50 million gallons. But then you point out it was .005

percent, and that 99.995 percent was handled properly and cleanly,

environmentally safely. I mean, it’s just amazing.

Anyway, we’re going to go first to Mr. Thompson, since he’s the

one that really requested that we look into this. We’ll proceed to

others after Mr. Thompson concludes his questions.

Mr. THOMPSON. Thank you very much.

Maybe I could just get a clarification. It’s my understanding that

this is a west coast problem and probably a court jurisdiction problem. It doesn’t seem to be an issue on the east coast, where the

Federal appeals court ruled that, I guess it was co-joined language

that said if you either had a violation or were fined, whereas the

First District Court of Appeals said it had to be disjunctive, you

had to have the violation and you had to be fined, is that correct?

Mr. DUNCAN. Let me just interrupt there. This is something

that’s apparently the heaviest at this point in California. But there

are many other places where I said, and including, for instance, the

little town of Maynardville, Tennessee, right outside of Knoxville,

Tennessee, my home town. Maynardville used to be in the district

I represent. It’s not now.

But they had a case, Ehler versus the City of Maynardville, Tennessee that had to go all the way to the Sixth Circuit U.S. Court
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of Appeals. And the Sixth Circuit dismissed the case because the

citizen suit duplicated the State’s administrative enforcement action for the same type of violations, and Maynardville already had

been implementing improvements to its wastewater treatment system that had been agreed to under the State enforcement action.

Yet they had to go all the way to the Sixth Circuit.

I can’t tell you how small Maynardville is. I can tell you that

about five or six years ago, they had me as the grand marshal of

their Christmas parade, and this State representative, now State

Senator, was driving me in his 1950 Studebaker truck. About 95

percent of the way around the parade route, the truck broke down,

and he got real embarrassed and he apologized. He said, Jimmy,

I hate to ask you this, but would you get out and push? And I had

to push that truck around the last few hundred yards or so of the

parade.

But what’s it got, Lincoln? What’s Maynardville’s population?

Eight hundred. Yet this little town, I can’t imagine how much they

would have had to pay in legal fees. And they won the case. This

is happening a lot of places.

Sorry to interrupt you. Go ahead.

Mr. THOMPSON. Mr. Chairman, I’m sorry you had to push. Next

time, call me and I’ll be happy to drive you in my old pickup truck.

I’m just trying to figure out if codifying the first court ruling on

the disjunctive language solves our problem or not. And if in fact

it does, would that follow to other Federal court jurisdictions? The

truth of the matter is, and it has been said a number of times,

what California is doing today the rest of the country is going to

be doing some time in the future. That can either be a good thing

or a bad thing. But I see these two competing or two different court

rulings as maybe being an underlying problem and/or cure. I just

want to get a sense from the witnesses if that’s correct.

Mr. DELLINGER. Congressman Thompson, a short answer is yes.

I don’t know if our counsel has anything to add to that, but that’s

correct.

Mr. THOMPSON. So if we codified the First District Court ruling,

it would not only solve the problem for California, but it would

solve it for all the other areas within different court jurisdictions

and would be a loud message for the 800 population towns in the

Chairman’s district or 800 population towns in my district not to

worry that these citizen lawsuits would be frivolous at best?

Mr. DELLINGER. Yes.

Mr. THOMPSON. Thank you. I yield back, Mr. Chairman.

Mr. DUNCAN. Thanks very much.

Mr. Pearce.

Mr. PEARCE. Thank you, Mr. Chairman. The contemplation that

it’s maybe just a west coast problem and also, even the observation

that it’s the Clean Water Act that’s being used, the Endangered

Species Act has been used in the same way. After I was elected,

I went on a listening tour, and every one of our 18 counties expressed that the Endangered Species Act is being used as a tool to

take away private property rights or whatever.

Just for your information, you may want to investigate it, last

year, I don’t know exactly what level court, but in Wyoming three

BLM employees were found guilty of racketeering and conspiracy
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for implementing decisions that were in fact channeling business

back to different groups. I would recommend that you can fight fire

with fire.

I think you should look at, especially when the groups are coming in and extorting you to use their products and maybe we’ll go

away if you’ll simply do that. I would think that we have to hold

Government employees accountable when the EPA begins to come

in and narrowly define its bill the way you’re talking about, Mr.

Westhoff’s testimony there, define a very narrow interpretation

which makes it impossible for anyone to live up to it.

Then somehow we simply are encouraged to use these people

right over here, your problem will go away. The BLM in New Mexico is so obvious that they will say to different producers, different

businesses, we know that you are really not doing anything wrong.

But if you would fund $50,000 for this archaeological study over

here about 25 miles away, what you’re not doing wrong certainly

wouldn’t be investigated as hard as what you’re not doing wrong

if you don’t contribute.

So we’ve got a combination of trial lawyers who are looking for

easy money from communities or anyone else. We also have a government agency mentality that says we’re going to assist in that

in every way that we can.

So Mr. Chairman, I would ask that we begin to have formal

hearings on the people who are suggesting that these communities,

any communities across the country use the products that they are

providing when they are bringing a lawsuit. I think that’s a serious, serious problem. I think also to look at how the EPA is narrowly defining the law, thereby throwing it into a difficult strait.

I think one last observation, we were in a different committee,

and a woman waited almost four hours to testify. At the end of her

testimony, she said, I’m a city councilor from the greenest community California, I think it was Santa Barbara. So she said, I’m the

greenest of the green and California is the greenest of the green

States. And she said, we’re seeing bumper stickers in my green

community and I’ve got one on my car that says, just open the

damned beach.

They say the Endangered Species Act is being used to stop people from building bedrooms on their houses, it’s closing the beaches. The extremists in the environmental movement I think are

doing exactly what you’re talking about, they’re hijacking good and

noble purposes. Who can say that we wouldn’t want to keep our

water clean, but they’re hijacking it to fund their own particular

projects.

And so I think that there is a growing sentiment among all political persuasions that something needs to be done, we need to curb

it. I will be happy to be in on the fight with you.

I think my only question, Mr. Chairman, if I have time left, is

Mr. Westhoff, you had mentioned the narrow definition that the

EPA has placed on top of Congress’ intent on the Clean Water Act.

Can you give me specifically what that definition is and how you

perceive that it was more intended by Congress?

Mr. WESTHOFF. It is clear in the Clean Water Act that citizen

suits were to be of a secondary enforcement vein, that the primary

enforcer was supposed to be the governmental regulators, whether
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it be EPA or a delegated State like we have in California. They

have in some instances allowed citizen suits to exist even where

there has been governmental enforcement, and have incurred citizen suits even where there has been governmental enforcement

just prior to.

The other narrow interpretation that I think will have the greatest impact on cities going into the future is their narrow interpretation or the prohibition that there shall not be any sanitary sewer

overflows. My question is somewhat rhetorical to all of you, when

do you call Roto-Rooter out to your house, before or after you have

a spill? In every community in this country, you go to the phone

book and there are hundreds and hundreds of Roto-Rooter sewer

contractors in your phone book, because all of our pipes will back

up at some time or another.

Our pipes are no different than your pipes, they’re just bigger

and there are just more of them and there are more spill points.

We can’t turn off the water to prevent a spill out of our toilets or

sinks or bathtubs.

So that’s certainly one area where, if they would just move off

of that prohibition language, it would assist many municipalities in

focusing their dollars on what needs to be done, which is to reduce

bills as much as possible. But it is impossible to eliminate them.

Mr. PEARCE. All right, sir. Thank you. And Mr. Chairman, thank

you for holding this hearing. Mr. Thompson, thank you for bringing

it up.

Mr. DUNCAN. Thank you very much, Mr. Pearce. Certainly I

think any common sense definition of conflict of interest would

have included the use of the blackmail of the use of the products

that you mentioned. Certainly at the very least those types of activities would have the appearance of impropriety.

Mr. Costello.

Mr. COSTELLO. Mr.Chairman, just one question. From reading

the testimony of the witnesses and hearing their testimony this

morning, it’s clear that none of you are advocating the prohibition

of citizen lawsuits. We understand that what you want to do is stop

the abuses.

Mayor, in particular in your testimony you recommend that additional burden of reason and proof should be placed on those who

threaten a Federal lawsuit prior to the filing of the required 60 day

notice of intent to sue. I wonder if you might elaborate on that,

what additional recommendations would you make?

Mayor MELO. Yes, sir. Well, again, I’m not a legal expert. But let

me just tell you our situation. We had a 60 day notice presented

to us after Northern California River Watch reviewed the reports

that we are required to send to our original water quality control

board on the performance of our plant.

As I see it, that serves two functions. The first thing is a quality

control measure, how is this plant performing and we need to know

that, as does the regional board.

The second thing is, of course, it becomes the basis for enforcement if necessary. All they did is read our reports and re-interpret

them so that there was such a huge number of alleged violations

they were not, they had no burden to prove them, they simply alleged them and filed the 60 day notice.
15

The legal advice that we got is the current construction of the

Act putting us in a losing position, because if we did not prevail

on each and every count, then we would lose much more. So we

went to the settlement.

So that is why I am recommending without any technical language that some burden needs to be placed on the individual filing

the citizen suit.

Mr. COSTELLO. So the burden of proof should be on the citizen

filing the suit?

Mayor MELO. Yes, sir. I sit on a city council, we have a planning

commission that makes land use decisions. If an appeal comes to

me, I expect the appellant to prove it on the appeal. Otherwise I’m

going to uphold the planning commission.

Mr. COSTELLO. Mr. Chairman, I really don’t have any other questions. I do want to give the witnesses an opportunity, if you would

like to add anything else for the record, any other comments?

[Witnesses respond in the negative.]

Mr. COSTELLO. Let me then, Mr. Chairman, ask, I have four letters that have been addressed to both of us, Mr. Chairman, one

from the Los Angeles City Attorney, another from the Waterkeeper

Alliance, a third one from the California Regional Water Quality

Control Board and also the California EPA. I ask that they be

made a part of the record.

Mr. DUNCAN. Thank you very much, Mr. Costello. Those letters

will be made a part of the record.

Mr. Dellinger, I was trying to skim over Section 1319(g), but it’s

too detailed for me to read right at this time. But is part of the

problem that a city starts an action against some violation but then

they file a suit that’s basically the same violation but they vary it

a little bit? Is that right, Mayor, is that what happens?

Mayor MELO. It’s right in the case we’re in the middle of right

now, yes. In fact, there were some violations cited in the filing

against us that in one regional plant situation violations haven’t

occurred for over six years, and another one they haven’t occurred

for over three years. This was after tens of millions of dollars had

been invested in improving the infrastructure and coming up with

long term disposal and recycling opportunities for the systems.

Mr. DUNCAN. When you say tens of millions, do you have any

idea or estimate of how much you’ve spent in legal fees and settlements on these types of suits over the last five years or whatever?

Mayor MELO. I don’t, I don’t know if maybe our attorneys do. I

can’t really even speak to the one I’m in the middle of right now,

because we’re in the middle of it and my attorney tells me I can’t

address that. But one of the problems, and you folks know because

you guys have been working on the infrastructure for so long, there

was a focus in this country about 15 or 20 years ago, and there was

still money left for small communities, and basically the philosophy

from the regulatory agencies was, you folks go in and fix your

treatment plants and your long term disposal. We got all through

that, and now the focus is changing to the collection systems, but

there isn’t any money attached to it.

I’m not here to ask for money today, but this is going to be a significantly costly, almost bordering on unaffordable way for us to fix

the infrastructure, because as these other gentlemen here will tell
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you, it’s the collection system part of all the wastewater that’s the

most expensive to build, operate and maintain. So we’re not talking

about the billions and billions that were invested before. I think

we’re talking even more than that.

For a small agency like mine, I really don’t think it’s an appropriate use of funds to pay attorneys fees when we’ve got to fix problems. If everybody wants clean water, we ought to be putting it

into solving the problems.

Mr. DUNCAN. Well, you know, that’s a problem. I remember a few

years ago I read an article in Reader’s Digest that said that at that

point, 85 percent of the money that had been spent on the Superfund program had been spent on legal fees, consultants, studies,

paperwork, bureaucrats, and only about 15 percent on actual cleanup. These things can get totally out of hand. Now I think we’re

doing a little bit better on the Superfund. But it’s just gotten ridiculous on some of these things.

Do you have anything you want to tell us, any specific instances

or detail that you want to add, Mayor Melo? What’s the population

of your city.

Mayor MELO. Seven thousand, sir.

Mr. DUNCAN. Seven thousand?

Mayor MELO. Yes, sir.

Mr. DUNCAN. Do you have any idea how much you’ve spent on

some of these types of things?

Mayor MELO. We’ve had the one case by Northern California

River Watch, and depending on your attitude as to how to allocate

our internal costs, we spent between $150,000 to $200,000 to settle

it, all costs including attorneys’ fees to the opponents. The estimate

by our legal people, our city attorney, was that it was a minimum

of a quarter of a million dollars to fight the thing, and that there

were some risks in fighting it. So what we made was a good business decision, it was at the marginal diminished return.

Mr. DUNCAN. OK.

Anybody else? Yes, Mr. Dellinger.

Mr. DELLINGER. I just want to say a thank you to Congressman

Thompson for his assistance and the rest of the Committee for seeing this problem and giving us the time to express it to you. Thank

you.

Mr. DUNCAN. Mr. Westhoff, how do we correct this?

Mr. WESTHOFF. Well, I would like to say one thing about our

lawsuit. I don’t think the Baykeeper was intending to extort anything from the City of Los Angeles. I think they had good motives

going out after it. But there has to be a better process. There has

to be a way of doing it without the litigation.

Six years, our own attorneys’ fees were close to $5 million, $1.6

million for theirs, $400,000 for intervenors and all of the penalties.

I can tell you that we would have sat down with them and developed many of the things, there isn’t anything in the settlement

about our program that is vastly different than what existed before

the lawsuit was filed.

We could have sat down and discussed it with them. We have relationships with environmental groups in Los Angeles that go back

many, many years. We are cooperatively working with them and

we would have welcomed the Baykeeper into that discussion. But
17

the litigation obviously carries with it a ticking clock that has dollars attached to it. The longer you litigate, the more it costs you.

But if you don’t litigate, if they’re asking for more up front, you’re

caught in betwixt and between.

So there needs to be a better process, there needs to be a better

process. There needs to be a cooperation between municipalities

and environmental groups that stays out of the courtroom.

Mr. DUNCAN. Well, we’ll see where this goes. This probably is the

start of a pretty long process, but these types of things have to

start some place. I think that you all are on the very forefront of

calling to our attention what could potentially be a very big, very

serious problem all across this Nation if we don’t begin to take corrective action.

I think it’s very important what you’ve done, coming here this

morning to present this testimony and respond to questions and

comments in the way you have. This has been a very informative

and good hearing, I think, and that will conclude this hearing.

[Whereupon, at 10:55 a.m., the Subcommittee was adjourned.]
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