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Russian River Watershed Protection Comm. v. Santa Rosa, City of

ELR Citation: 28 ELR 21265
Nos. 97-15179, 142 F.3d 1136/46 ERC 1498/(9th Cir., 04/24/1998)

The court holds that the executive officer of a regional board had the discretion to determine a city's method of compliance with national pollutant discharge elimination system (NPDES) permits. The court first holds that the district court was not clearly erroneous in its finding that neither the 1990 nor the 1995 NPDES permits specify the manner in which compliance with the discharge requirements is to be calculated. A review of both the 1990 and 1995 permits indicates that they do not specify any manner in which the NPDES discharge requirements are to be calculated. In addition, the procedure established by the executive officer, based on the seven-day averaging of each previous day's highest hourly flow, is a reasonable interpretation of the NPDES permit. The court next holds that the city did not violate the permit by discharging in excess of one percent when the variation in the storage ponds was below the operations curve at the time of discharge. The variance 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. The court also holds that because the permits did not specify the tests to be used, the district court correctly found that the grab samples for chlorine and coliform are properly taken at the end of one of the three chlorine contact chambers. The court then holds that the executive officer's adoption of a method of compliance with the NPDES permits was not a modification of the NPDES permits in violation of California Water Code §13223(a). California Water Code §13223(a) gives the regional board the authority to delegate any of its powers and duties, with limited exceptions, to its executive officer. In this case, the regional board so delegated its authority to determine the method of compliance with the city's NPDES permits. In addition, the establishment of a method of compliance with an NPDES permit does not constitute a modification of the terms of the NPDES permit under federal law. The court next holds that the district court was correct in deciding that the environmental group challenging the city's NPDES compliance lacked standing under the Federal Water Pollution Control Act because it did not prove the existence of ongoing violations or the reasonable likelihood of continuing future violations. Finally, the court holds that the district court did not err in awarding costs to the city. Fed. R. Civ. P. 54(d) creates a presumption in favor of awarding costs to the prevailing party that may only be overcome by pointing to some impropriety on the part of the prevailing party that would justify a denial of costs, and the group has alleged no such improprieties.

Counsel for Plaintiffs
Jack Silver
Silver & Silver
902 Stevenson St., Santa Rosa CA 95404
(707) 527-8811

Counsel for Defendant
Rene A. Chouteau, City Attorney
City Attorney's Office
100 Santa Rosa Ave., Rm. 8, Santa Rosa CA 95404
(707) 543-3040

Before Schroeder and Farris, JJ.