Northwest Environmental Advocates, a Non-Profit Oregon Corporation and Nina Bell v. City of Portland

11 F.3d 900 62 USLW 2395 , 24 Envtl. L. Rep. 20 ,238 NORTHWEST ENVIRONMENTAL ADVOCATES, A Non-Profit Oregon Corporation and Nina Bell, Plaintiffs-Appellants, v. CITY OF PORTLAND, Defendant-Appellee. No. 92-35044. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 6, 1993. Decided Dec. 10, 1993. 1 Patrick A. Parenteau, Perkins Coie, Portland, OR, for plaintiffs-appellants. 2 Terrence L. Thatcher, Office of City Attorney, Portland, OR, for defendant-appellee. 3 Appeal from the United States District Court for the District of Oregon. 4 Before: PREGERSON, KLEINFELD, Circuit Judges, and INGRAM, District Judge. * INGRAM, District Judge: 5 Northwest Environmental Advocates and Nina Bell (NWEA) appeal from the district court's judgment in favor of Portland on their claims that the City is violating the Clean Water Act (CWA). 6 On April 16, 1991, NWEA filed suit in the district court alleging that Portland's practice of discharging raw sewage during times of precipitation from 54 outfall points was not covered by a permit and that the practice had caused and was continuing to cause violations of Oregon's water quality standards. After a trial on the written record, the…

Northwest Environmental Advocates and Nina Bell (NWEA) appeal from the district court’s judgment in favor of Portland on their claims that the City is violating the Clean Water Act (CWA).

On April 16, 1991, NWEA filed suit in the district court alleging that Portland’s practice of discharging raw sewage during times of precipitation from 54 outfall points was not covered by a permit and that the practice had caused and was continuing to cause violations of Oregon’s water quality standards. After a trial on the written record, the district court held that 1) the contested discharge points were covered by Portland’s pollution permit, and 2) the court lacked jurisdiction to consider NWEA’s water quality violation claims. We AFFIRM both holdings.

I. BACKGROUND

A. THE PORTLAND SEWAGE TREATMENT SYSTEM

At issue is the operation of the Portland sewer system. Portland operates a sewage treatment system that includes a network of combined sewage and stormwater pipes. Although the construction of these combined sewer pipes was discontinued in 1962, approximately 70% of the City’s sewers remain combined sewers. Supp.E.R. 21. The effluent flowing in the system ideally is intercepted and…

concurring in part and dissenting in part:

I concur in all parts of the majority opinion except the finding that Northwest Environmental Advocates (“NWEA”) lacks standing to bring a citizen suit under the Clean Water Act (“CWA”) § 505(a)(1) [ 33 U.S.C. § 1365 (a)(1) ], to enforce water quality standards contained in NPDES permits. Portland holds an NPDES permit, and the water quality standards are conditions of its permit. Both the plain language of § 1365(a)(1) and case law support a finding of citizen suit jurisdiction in this case, and I am unpersuaded by the majority opinion’s reasoning that legislative history and practical considerations preclude jurisdiction. I therefore respectfully dissent.

As the majority opinion points out, the plain language of § 1365(a) authorizes citizens to enforce all permit conditions. That section provides: “[A]ny citizen may commence a civil action ... (1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under [the Clean Water Act]_” 33 U.S.C. § 1365 (a)(1)(A). An effluent standard or limitation includes “(2) an effluent limitation or other limitation under section 1311 ... or (6) a permit or…