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Cape Ann Citizens Ass'n v. Gloucester, City of

ELR Citation: 27 ELR 21532
Nos. 96-22327, 121 F.3d 695/(1st Cir., 08/13/1997)

The court holds that a citizen group failed to show that a consent decree between the city of Gloucester, the United States, and Massachusetts, which requires the city to construct a sewer system extension, impermissibly considered water quality standards or that the city's installation of septic tanks was a taking. The court first holds that the citizen group's state claim to restrain the construction fails because it has been brought too late. The statute is not retroactive. Actions under the state statute must be brought before obligations are incurred. Here, most of the construction the group complains of has been completed. The court next holds that the citizen group has failed to demonstrate that the consent decree violated the Federal Water Pollution Control Act (FWPCA). The court rejects the citizen group's argument that because the effluent limits in the permit are based on water quality standards rather than effluent limitations, they are unenforceable. There is no evidence that Congress intended to preclude the enforcement of water quality standards that have not been translated into effluent discharge limitations. And the citizen group offers little more than a vacated case and a generalized discussion of the goals of the FWPCA in support of its argument. There is also no requirement that the consent decree enumerate the FWPCA's objectives and state that each objective has been taken into account. The court also rejects the citizen group's argument that requiring homeowners to grant an easement to the city in exchange for the installation of septic tanks on their property violates the Takings Clause of the Fifth Amendment. The city has a legitimate interest in protecting public health and preventing nuisances, and the city gave homeowners the option of installing and owning the tanks themselves. The court further holds that the regulations implementing the consent decree are not vague and that the septic tank effluent pump system the city chose to construct falls under the definition of "common sewer," giving the city's Board of Health the power to order the connection.

Counsel for Plaintiffs
Philip H. Cahalin
Peabody & Arnold
50 Rowes Wharf, Boston MA 02110
(617) 951-2100

Counsel for Defendants
Linds T. Lowe, General Counsel
Law Department for City of Gloucester
Nine Dale Ave., Gloucester MA 01930
(508) 281-9727

Before Bownes and Cyr, JJ.