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Hudson River Fishermen's Ass'n v. Westchester, County of

ELR Citation: 18 ELR 21451
Nos. No. 87 Civ. 1575 (GLG), 686 F. Supp. 1044/27 ERC 2154/(S.D.N.Y., 05/26/1988)

The court holds that plaintiff may maintain a citizen suit under the Federal Water Pollution Control Act (FWPCA) concerning a stormwater outlet allegedly discharging hazardous leachate into the Hudson River. The court first holds that the stormwater outlet may constitute a point source, but that an evidentiary hearing is necessary in order to establish whether defendants were intentionally using the storm drain as a point source, for the discharge of pollutants. The court holds that, assuming the outlet is a point source, the requirement in FWPCA §301 that dischargers of pollutants obtain permits constitutes an "effluent limitation" subject to citizen suit under §505 of the Act. In addition, the court holds that although defendants capped the stormwater outlet subsequent to the filing of this suit, the court has subject matter jurisdiction. The complaint contains good-faith allegations of continuing violation. While the whole action, or parts of it, may later become moot, it is the state of affairs at the time the suit is filed that controls the jurisdictional question. Plaintiffs have submitted evidence that the cap is sometimes removed, and that the effluent flowing from the pipe is noxious and polluted.

The court also holds that plaintiff's suit is not barred by a pending enforcement action that had previously been brought by the federal government under the Rivers and Harbors Act. The government's suit concerned defendant's landfill, which is next to the stormwater outlet and is the alleged source of the leachate discharged into the river. The government obtained a consent decree in its case, and is now seeking to enforce the decree through a contempt of court proceeding. Plaintiff's citizen suit, which is based on an alleged violation of the FWPCA, therefore raises different issues than those in the government's action.

Counsel for Plaintiff
Robert F. Kennedy Jr.
Pace University School of Law
33 Crane Ave., White Plains NY 10603
(914) 681-4333

Counsel for Defendants
Martin S. Baker
Rosenman & Colin
575 Madison Ave., New York NY 10022
(212) 940-8800