Appeal from the United States District Court for the Northern District of California Samuel Conti, District Judge, Presiding Argued and Submitted February 9, 1998 San Francisco, California
Before: Mary M. Schroeder, Jerome Farris and A. Wallace Tashima, Circuit Judges.
The opinion of the court was delivered by: Tashima, Circuit Judge:
The Russian River Watershed Protection Committee and Brenda Adelman ("appellants") appeal from a judgment entered in favor of the City of Santa Rosa (the "City") after a bench trial in this Clean Water Act case. On appeal, appellants contend that the City's method of determining compliance with its National Pollutant Discharge Elimination System permits ("NPDES permits" or "permits") violated the terms of those permits and the Clean Water Act. They also contend that the district court erred in finding that they did not have standing under the Clean Water Act. Because the NPDES permits do not establish a method of determining compliance, we hold that the Executive Officer of the Regional Board had the discretion under California Water Code section 13223(a) to determine a method of compliance with the permits. We also affirm the district court's decision that appellants lacked standing under the Clean Water Act.
The Clean Water Act regulates the discharge of pollutants into navigable waters, prohibiting their discharge unless certain statutory exceptions apply. 33 U.S.C. S 1311(a). One such exception is where the polluter has been issued an NPDES permit. 33 U.S.C. S 1342. The effluent discharge standards or limitations specified in an NPDES permit define the scope of the authorized exception to the prohibition in section 1311(a). Authority to administer the NPDES permit system may be delegated to a state or regional agency where the state or regional regulatory scheme meets certain criteria. 33 U.S.C. S 1342(b). The entity responsible for issuing permits in the Santa Rosa area is the California North Coast Regional Water Quality Control Board (the "Regional Board"). The Regional Board is established pursuant to the Porter-Cologne Water Quality Control Act, Cal. Water Code S 13000 et seq., and enforces the provisions of that statute as well. Private citizens may bring suit pursuant to 33 U.S.C. S 1365 to enforce effluent standards or limitations, which are defined to include violations of NPDES permits. 33 U.S.C. S 1365(f)(1). Thus, private citizens may bring suit under the Clean Water Act to enforce the standards set out in NPDES permits.
The City operates a wastewater treatment system serving various cities and areas in Sonoma County, California. The system's main plant is the Laguna Subregional Wastewater Treatment Plant (the "Laguna Plant") which is located outside the City adjacent to the Laguna de Santa Rosa, a tributary of the Russian River. This plant is considered a major discharger, as defined by the Environmental Protection Agency. The Laguna Plant is a modern facility which treats sewage from participating communities at an advanced level referred to as the tertiary level. Sewage passes through various basins and clarifiers which provide treatment to the secondary level before achieving tertiary level treatment through filtration and disinfection. The sewage reclaimed through this process is authorized for irrigation of food crops, golf courses and school playfields. During the summer, all reclaimed water is used for irrigation and during the winter it is released into the Russian River.
The Regional Board issued NPDES permits to the City in 1986, 1990 and 1995. The 1990 and 1995 NPDES permits are substantially similar, both containing discharge prohibitions, numeric effluent limitations, receiving water limitations, and requirements for solids disposal, pretreatment of industrial waste, and monitoring and reporting.
The permits prohibit the discharge of reclaimed water during the summer irrigation season, from May 15 through September 30. Between October 1 through May 14, the City may discharge one percent of the flow of the Russian River after it initially reaches a flow of 1,000 cubic feet per second ("cfs"). The permits state that the 1,000 cfs is to be measured by the gauge at the Hacienda Bridge. The permits do not specify how the flow is to be measured. The discharge is released into the Laguna de Santa Rosa, eight to twelve miles above the gauge at Hacienda Bridge, and takes from one to five days to reach the bridge.
In accordance with California Water Code section 13223(a), the Regional Board delegated all powers authorized by that statute to its Executive Officer. The Executive Officer devised a method known as the "seven-day averaging method" for measuring allowable discharge which has been used throughout the terms of the 1990 and 1995 NPDES permits. Under this method, discharge rates are determined by basing the daily discharge rate on the previous day's highest hourly flow (recorded at Hacienda Bridge). Discharge percentages are then calculated as a weekly average.
The permits set limitations on the discharge of effluents, such as chlorine, coliform and hydrogen ions, from the treated water. The permits state a minimum value of 1.5 mg/1 for chlorine residual and requires that this minimum value "be maintained at the end of the chlorine contact chamber." There are three such chambers at the Laguna Plant. The Executive Officer determined that coliform and ...