United States v. Douglas County

Civil No. R-2736 (D. Nev. May 16, 1973)

The defendants are enjoined from issuing any new building permits until the completion of facilities for waste treatment and exportation that satisfy the water quality standards and implementation plan for the Lake Tahoe basin adopted by Nevada pursuant to the Federal Water Pollution Control Act. Stating that the statute is to be interpreted liberally, the court holds that districts which fail to implement sewage disposal plans adopted pursuant to the Act are "violators"; that the relief sought is an appropriate equitable remedy in "abatement" of pollution, even though new permits for holding tanks would not affect water quality; and that failure to implement water quality standards according to plan is harm-sufficient to justify an injunction.

Counsel for Plaintiff
Raymond B. Little Assistant U.S. Attorney
Federal Building
300 Booth Street
Reno, Nevada 89502

Matthew S. Walker
James Jaffe
David Mowday
Environmental Protection Agency
100 California Street
San Francisco, California 94111

Counsel for Defendants
Howard McKibben
First National Bank Building
Minden, Nevada 89423
Lester H. Barkson
State Line, Nevada 89449

[3 ELR 20727]

Thompson, J.

PRELIMINARY INJUNCTION

Pursuant to the Order Granting Preliminary Injunction filed concurrently herewith, IT HEREBY IS ORDERED, ADJUDGED AND DECREED:

1. Douglas County, Nevada, its agents, servants, employees and persons acting on its behalf, are hereby enjoined and restrained, from and after December 1, 1973, from issuing permits for the construction of any new buildings, residences and facilities in the areas in Douglas County, Nevada comprising the Kingsbury General Improvement District and the Tahoe-Douglas District, until facilities for the treatment and exportation of waste and sewage from the Lake Tahoe Basin have been completed and placed in operation.

2. Defendants Kingsbury General Improvement District and Tahoe-Douglas District, their agents, servants and employees, are hereby ordered and directed to file with this Court, on or before September 1, 1973, a plan to accomplish the requirements of the Interstate Water Quality Standards and Plan of Implementation 1967, with respect to the treatment and exportation from the Lake Tahoe Basin of the waste and sewage produced in their respective improvement districts.

3. The Court hereby reserves jurisdiction to amend and modify the foregoing orders in accordance with the equities of the case as they may from time to time be demonstrated.

Dated: May 16, 1973.

ORDER GRANTING PRELIMINARY INJUNCTION

This is an action to abate the pollution of Lake Tahoe brought pursuant to the Federal Water Pollution Control Act, as amended (33 U.S.C. § 1151, et seq.). The thrust of the suit is to enforce the water quality standards established by the State of Nevada on June 27, 1967, for interstate waters subject to its jurisdiction which are contained in the documents entitled "Water Pollution Control Regulations" and "Interstate Water Quality Standards and Plan of Implementation 1967." These were promulgated by the State pursuant to 33 U.S.C. § 1160(c)(1):

(c)(1) If the Governor of a State or a State water pollution control agency files, within one year after October 2, 1965, aletter of intent that such State, after public hearings, will before [3 ELR 20728] June 30, 1967, adopt (A) water quality criteria applicable to interstate waters or portions thereof within such State, and (B) a plan for the implementation and enforcement of the water quality criteria adopted, and if such criteria and plan are established in accordance with the letter of intent, and if the Secretary determines that such State criteria and plan are consistent with paragraph (3) of this subsection, such State criteria and plan shall thereafter be the water quality standards applicable to such interstate waters or portions thereof.

Inasmuch as the Secretary of the Interior did officially determine that the State plan and criteria are consistent with the requirements of the Water Pollution Control Act, the State standards and plan have become federal requirements as well with respect to Lake Tahoe and other interstate waters covered. 18 C.F.R. § 620.10.

The action is before the Court on a motion for a preliminary injunction and defendants' motions to dismiss. The defendants are Douglas County, Nevada, Tahoe-Douglas District and Kingsbury General Improvement District. The latter named districts are quasimunicipal corporations organized under state law consisting of unincorporated territory in the Lake Tahoe Basin in Douglas County, Nevada, with statutory powers to supply sanitary sewage services and facilities to inhabitants within the District. Plaintiff is the United States and the action was brough, pursuant to 33 U.S.C. § 1160(g).

Lake Tahoe, situated in the States of California and Nevada, has been described as a priceless natural resource. It is an interstate water. The evidence shows that for some twenty years or more, the pollution of the Lake and the maintenance of the quality of its water have been matters of deep concern among responsible people and agencies. The evidence shows that Lake Tahoe is an oligotrophic lake and is nitrogen sensitive. This means that it is very low in food values for plant life. It is because of this that it has a very clear and deep blue appearance. There are three large oligotrophic lakes in the world, of which Tahoe is one. Crater Lake in Oregon is another and Lake Baikal in Siberia is the third. There are other small mountain lakes which are of the same character, but these are the three large, clear and clean lakes. The beauty of Lake Tahoe is due to its clarity — the penetration of light deep into the Lake, the clear sky overhead — all contribute to the attractiveness of the Lake. Phosphorous or nitrogen compounds reaching the water will start a food chain that will create the presence of organisms causing turbidity and destroying the Lake's clarity. Both phosphorous and nitrates leach from septic tanks. The soil absorbs most of the phosphorous so it is principally the nitrates which leach through the soil into the Lake. Lake Tahoe is situated in a closed geological basin, that is to say, nitrogen wastes and other wastes deposited in the watershed will eventually percolate into the Lake and will not escape therefrom.

The procedures prescribed in the Federal Water Pollution Control Act have been followed. On June 20, 1966, the Secretary of the Interior called a conference pursuant to 33 U.S.C. § 1160(d) which was convened July 18, 1966, at Stateline, Nevada, regarding the pollution of the interstate waters of Lake Tahoe and its tributaries. The confreres were the Federal Water Pollution Control Administrator, the Nevada Department of Health, Welfare and Rehabilitation, and the California State Water Quality Control Board. Many others participated in the conference as individuals and as representatives of various Nevada and California municipalities, agencies and organizations. The confreres made the findings that there were recognizable short and long term threats of pollution to Lake Tahoe due mainly to the rapid commercial and residential development of the Lake Tahoe Basin. Among other things, the conference agreed and recommended (1) that sewerage districts should aggressively pursue plans for export of sewage effluent from the Lake Tahoe Basin, and (2) that all effluent waste waters receive a minimum sanitary treatment and be exported from the Basin by 1970. Specific findings applicable to our situation are:

Basin-wide objectives and standards for development and use of the lands and waters must be established within a framework which includes positive enforcement provisions covering not anly the waters of Lake Tahoe but its shoreline development and the total complex of lands and waters that make up the Basin.

Districts [should] aggressively pursue the plans now underway for export of sewage effluent from the Tahoe Basin. When such sewage exportation facilities have been constructed, no development should be permitted within the Basin unless capable of being serviced by such facilities.

Sewage export from the Basin is to be achieved on a time schedule which will ensure preservation of the water quality of Lake Tahoe and is to be completed by 1970.

All federal, state and local agencies shall perform their functions in such a manner as to permit land development in the Lake Tahoe Basin to proceed without threat to the high quality of Lake Tahoe waters.

The Nevada Interstate Water Quality Standards and Plan of Implementation were thereafter adopted by the Nevada Board of Health and approved by the Secretary of the Interior. These provide, in part:

The standards for Lake Tahoe are in compliance with the recommendations of the federal enforcement conference held in July 1966 at Stateline, Nevada.

Tahoe Basin: The policy, in conformance with the enforcement conference, is to export all sewage from the Basin. A 3 MGD activated sludge waste water treatment plant is being constructed at the south end of the Lake in Douglas County. Completion of this treatment and export system is scheduled for June 1968. The effluent is to be exported over Daggett Pass into the Carson Basin. It is anticipated that this effluent will not cause any noticeable effect on the water quality of the Carson River at Highway 395 South of Carson City. Advance planning is underway by Douglas County for the complete collection, treatment and export of all wastes originating in the Douglas County portion of the Tahoe Basin.

Tahoe Basin: Recommendations of the Enforcement Conference at Stateline, Nevada in July 1966 provide for the control of shoreline development, control of waste discharges from the boats and exportation of all garbage and sewage from the Tahoe Basin by 1970.

The water pollution regulations adopted by the Nevada Board of Health and approved by the Secretary of the Interior provide, in part:

Section 1(e): 'Individual disposal system' means that system in rural or urban areas for disposing of household wastes which is constructed, operated and maintained by the individual owner or occupant of the premises served thereby.

Section 5(b): Individual disposal systems shall not hereafter be constructed or installed in residential areas where the Division of Health finds that poor soil conditions, high water table, or other factors, preclude operation and maintenance thereof without hazard to health.

On November 9, 1971, the Administrator of the Environmental Protection Agency notified the Kingsbury General Improvement District and the Tahoe-Douglas District by letter that they were in violation of the Nevada State and Federal Water Quality Standards Plan of Implementation due to the continued discharge of liquid waste waters within the Districts to subsurface disposal systems and failure to provide for collection of these wastes for centralized treatment and export from the Tahoe Basin. On December 16, 1971, the Board of County Commissioners of Douglas County was similarly notified. On January 6, 1972, an informal hearing pursuant to 18 CFR § 604.24 was held at Zephyr Cove, Nevada. Early in January, 1972, the Board of County Commissioners of Douglas County, Nevada, enacted Ordinance SSP-71-1 to set up a special assessment funding a bond issue for construction of the sewage treatment and export system in the Douglas County area of the Lake Tahoe Basin. [3 ELR 20729] Actions were brought in the First Judicial District Court of the State of Nevada by individuals seeking a declaration of the invalidity of this ordinance. Since the instant action was commenced, the District Court has ruled that the County could not issue bonds to finance the project because that would be a general obligation of the County. At about the same time, the ordinance was submitted by referendum to the voters of Douglas County at the general election in November 1972 and the ordinance was repealed. As a consequence, the anticipated appeal by the Douglas County Commissioners from the decision of the District Court was abandoned.

The evidence adduced at the hearing on the motion for preliminary injunction shows that there are approximately 1,400 residences located in the area of the two defendant improvement districts in Douglas County, Nevada, which are presently serviced by septic tanks, that is to say, an individual sewage disposal system which disposes of household waste by depositing it in an underground tank where it is broken up by bacteriological action and the effluent from which percolates into the adjacent ground. While construction has been continuing in these areas since March of 1971, no permits have been issued for septic tanks and construction has been permitted only with the use of holding tanks, that is, a solid metal tank into which the household waste is deposited and from which the effluent connot escape into the surrounding soil. Periodically the holding tanks are serviced by a tank truck which pumps out the tank and hauls the sewage out of the Tahoe Basin for disposition.

In August 1972, the Environmental Protection Agency conducted a water quality survey at Lake Tahoe in the vicinity of the drainage from the two defendant improvement districts. Results showed substantial violations of the bacteriological (total coliform) criteria in the adopted water quality standards for Lake Tahoe at Edgewood Creek, draining a portion of the Kingsbury District, Lincoln Creek, draining parts of the Tahoe-Douglas District, and at Edgewood Beach.

Plaintiff requests injunctive relief in the form of orders precluding Douglas County, Nevada from issuing any building permits in the Lake Tahoe Basin until facilities have been completed for treatment of waste and its exportation out of the Lake Tahoe Basin and requiring the Kingsbury General Improvement District and the Tahoe-Douglas District to formulate and present to this Courtfor approval plans for the expeditious construction of the needed facilities. The evidence shows that the areas comprising these two districts are the only portions of the Lake Tahoe Basin where facilities in conformity with the recommendations of the Conference at Stateline, Nevada on July 18, 1966 have not been substantially completed.

In opposition to injunctive relief and in support of their motions to dismiss the action, defendants contend (1) that none of them is a "violator" of the Federal Water Pollution Control Act; (2) that the relief sought does not fall within the concept of "adatement" of pollution as used in the Act; (3) that the Act does not authorize the type of relief sought by plaintiff; and (4) that no irreparable injury authorizing injunctive relief has been pleaded or established by the evidence inasmuch as new construction of holding tanks cannot pollute the waters of Lake Tahoe and whatever pollution may be caused by septic tanks servicing homes constructed before March of 1971 is minimal and will not support injunctive relief.

Whether the Federal Water Pollution Control Act authorizes the type of relief sought by plaintiff against defendants named in this action is a difficult question. Narrowly interpreted, Section 1160 authorizes abatement of discharges which cause pollution into the Lake or its tributaries; that is, the abatement of the reduction of the water quality standards below the established criteria. The Section speaks of "violators" and notice to them of the "violations" causing pollution. As so interpreted, the law would be restricted to an action against an individual property owner supported by evidence that his sewage disposal system or other activity is discharging pollution into a tributary of the Lake. On the other hand, the Government contends for a broad, encompassing interpretation of the Act to achieve the Congressional purpose.

The Congressional objectives have been specifically announced in the first section. 33 U.S.C. § 1151:

(a) the purpose of this Chapter is to enhance the quality and value of our water resources and to establish a national policy for the prevention, control and abatement of water pollution.

(b) In connection with the exercise of jurisdiction over the waterways of the Nation, and in consequence of the benefits resulting to the public health and welfare by the prevention and control of water pollution, it is declared to be the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States in preventing and controlling water pollution, to support and aid technical research relating to the prevention and control of water pollution, and to provide Federal technical services and financial aid to State and interstate agencies and to municipalities in connection with the prevention and control ofwater pollution . . .

The purposes of Congress cannot be achieved by limiting the sanctions of the Act to authorization of innumerable individual actions against persons allegedly causing pollution. To do so would be to render meaningless the carefully conceived provisions for the development of comprehensive cooperative programs for the control and elimination of pollution (33 U.S.C. § 1153), the negotiation and consummation of interstate compacts (33 U.S.C. § 1154), the funding and sponsoring of research, investigations and experimentations (33 U.S.C. § 1155), and grants in aid of pollution control (33 U.S.C. §§ 1157, 1158).

In the instant case, water quality standards have been established for Lake Tahoe pursuant to 33 U.S.C. § 1160, together with a plan for implementation of such standards. The plan specifically requires the treatment and exportation of sewage from the Lake Tahoe Basin. Section 1160(c)(1) requires the adoption of a "plan for the implementation and enforcement of the water quality criteria adopted" and provides that such "State criteria and plan shall (after approval by the Secretary) be the water quality standards applicable to such interstate waters."

The Act [33 U.S.C. § 1160(5)] provides for court action "relating to the alleged violation of the standards" and invests the Court with "jurisdiction to enter such judgment and orders enforcing such judgment as the public interest and equities of the case may require" after the Court has given due consideration to the practicability and to the physical and economical feasibility of compliance with such standards.Again, in 33 U.S.C. § 1160(h), the Court is empowered "giving due consideration to the practicability and to the physical and economical feasibility of securing abatement of any pollution proved . . . to enter such judgment, and orders enforcing such judgment, as the public interest and equities of the case may require."

Legislation of this type should be given a liberal interpretation. United States v. Republic Steel Corp., 362 U.S. 482 (1960). When the Federal Water Pollution Control Act is read as an integrated whole, the intent to provide for enforcement of water quality standards in interstate waters by requiring compliance with the plan of implementation which has been officially adopted pursuant to specific enabling provisions of the law becomes clear. This cannot be accomplished by limiting the meaning of "violator" to one who causes the discharge of pollution into Lake Tahoe and its tributaries and by limiting the concept of "abatement" to an action to stop a specific activity causing the discharge of pollution. In our view, a violator is any person or agency who has failed in his or its responsibility to fulfill the approved plan for implementation of water quality standards. The abatement action is one authorized to bring about full compliance with the standards. Under this interpretation, the named defendants are proper defendants and are violators. Douglas County, Nevada and the two improvement districts are the municipal agencies responsible for the fulfillment of the requirements that sewage be treated and exported. While the County Commissioners of Douglas County recognized this responsibility by adoption of Ordinance SSP-71-1, the people of Douglas County, by their vote in the November election, renounced this responsibility. It would be a pusillanimous law which would permit a handful of willful voters to prevent the complete effectuation of an overall plan to prevent pollution of Lake Tahoe during coming generations. The duty of Douglas County to cooperate must be made evident and the obligations of the improvement districts to employ their statutory powers to construct and operate suitable sewage treatment and export facilities must be enforced.

The broad jurisdiction of a court of equity under legislation empowering the courts to make and enforce orders reasonably calculated to protect the public interest has been described by the Supreme [3 ELR 20730] Court in the case of Porter v. Warner Co., 328 U.S. 395 (1946), as follows:

Thus the Administrator invoked the jurisdiction of the District Court to enjoin acts and practices made illegal by the Act and to enforce compliance with the Act. Such a jurisdiction is an equitable one. Unless otherwise provided by statute, all the inherent equitable powers of the District Court are available for the proper and complete exercise of that jurisdiction. And since the public interest is involved in a proceeding of this nature, those equitable powers assume an even broader and more flexible character than when only a private controversy is at stake. Virgininian R.Co. v. System Federation, 300 U.S. 515, 552. Power is thereby resident in the District Court, in exercising this jurisdiction, 'to do equity and to mould each decree to the necessities of the particular case.' Hecht Co. v. Bowles, 321 U.S. 321, 329. It may act so as to adjust and reconcile competing claims and so as to accord full justice to all the real parties in interest; if necessary, persons not originally connected with the litigation may be brought before the court so that their rights in the subject matter may be determined and enforced. In addition, the court may go beyond the matters immediately underlying its equitable jurisdiction and decide whatever other issues and give whatever other relief may be necessary under the circumstances. Only in that way can equity do complete rather than truncated justice. Camp v. Boyd, 229 U.S. 530, 551-552.

Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. 'The great principles of equity, securing complete justice, should not be yielded to light interferences, or doubtful construction.' Brown v. Swann, 10 Pet. 497, 503. See also Hecht Co. v. Bowles, supra, 330.

And in Mitchell v. DeMario Jewelry, 361 U.S. 288 (1960), the Court said:

When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes. As this Court long ago recognized, 'there is inherent in the Courts of Equity a jurisdiction to . . . give effect to the policy of the legislature.' Clark v. Smith, 13 Pet. 195, 203.

Cf. Reich v. Webb, 336 F.2d 153 (9th Cir. 1964).

Defendants' concern about the absence of a showing of immediate and irreparable injury is not pertinent in these circumstances. The language of Judge Friendly in Studebaker Corporation v. Gittlin, 360 F.2d 692 (1966), has been frequently quoted:

A plaintiff asking an injunction because of defendant's violation of a statute is not required to show that otherwise rigor mortis will set in forthwith; all that 'irreparable injury' means in this context is that unless an injunction is granted, the plaintiff will suffer harm which cannot be repaired. At least that is enough where, as here, the only consequence of an injunction is that the defendant must effect a compliance with the statute which he ought to have done before.

In the instant case, the approved water quality standards and plan of implementation, like a statue, create obligations. It has been declared and established that the way to protect the purity of Lake Tahoe is to treat and export the sewage. These are findings that are binding on the defendants as well as the Court. While the effect of delay cannot be measured in terms of irreparable injury, the need to expedite performance which was scheduled for completion in 1970 cannot be contraverted.

The United States has found it provident to bring this action for the protection of Lake Tahoe and interstate waters. The Congress, in the Federal Water Pollution Control Act, has provided major appropriations to aid in the construction of works and facilities by state agencies pursuant to approved plans and standards. These provisions are particularly applicable to sewage treatment projects. 33 U.S.C. § 1158. The fact that the United States has sought the aid of this Court to bring about compliance by the defendants carries a correlative implication that the Government will cooperate fully to aid the defendant districts in financing the projects. It is obvious that it may well be beyond the financial capacity of the defendant districts to plan and construct the needed facilities without substantial federal aid. The law enjoins the Court to give due consideration to the practicability and to the physical and economic feasibility of compliance with established standards. Whether or not a practical and feasible plan can be developed by the defendant improvement districts depends for the most part upon federal cooperation and grants in aid. Without such full and generous cooperation, the Court may find itself powerless to enforce compliance. Accordingly, IT HEREBY IS ORDERED:

1. The defendants' motions to dismiss the complaint are denied.

2. A preliminary injunction shall issue as follows:

(a) Douglas County, Nevada, its agents, servants, employees and persons acting on its behalf, shall be enjoined and restrained, from and after December 1, 1973, from issuing permits for the construction of any new buildings, residences and facilities in the areas in Douglas County, Nevada comprising the Kingsbury General Improvement District and the Tahoe-Douglas District, until facilities for the treatment and exportation of waste and sewage from the Lake Tahoe Basin have been completed and placed in operation.

(b) Defendants Kingsbury General Improvement District and Tahoe-Douglas District, their agents, servants and employees, are hereby ordered and directed to file with this Court, on or before September 1, 1973, a plan to accomplish the requirements of the Interstate Water Quality Standards and Plan of Implementation 1967, with respect to the treatment and exportation from the Lake Tahoe Basin of the waste and sewage produced in their respective improvement districts.

The Court reserves jurisdiction to amend and modify the foregoing orders in accordance with the equities of the case as they may from time to time be demonstrated.

Dated: May 16, 1973.