Areas of Practice
Federal Clean Water Act
MS4: Background, Current Situation and Problem Statement
Urban stormwater is the largest single source of pollution California’s creeks, rivers, and beaches and impacts the California coast and ocean. Stormwater also represents a critical local water supply for California’s cities to address climate-induced shortages and the need for additional environmental flows, while reducing pollution to creeks and the ocean. Unfortunately, the state’s regulatory failures prevent the transformation of polluted stormwater from waste into a resource. Poor permit writing, purposefully inadequate monitoring programs under those permits, and a complete lack of enforcement all ensure that cities can do nothing to address the problems raised by drought and climate change.
Lawyers for Clean Water on behalf of its clients across the state has spent years attempting to remedy this situation through regulatory advocacy. Despite some strengthening of stormwater permits over the last decade, regulators have proven unwilling or unable to monitor permit compliance or enforce upon the worst actors. Clean Water Act citizen enforcement in key watersheds across California is the solution. Los Angeles Waterkeeper and San Francisco Baykeeper, represented by Lawyers for Clean Water, have successfully used this tool to achieve major change in Los Angeles County and the City of San Jose, two of California’s largest metropolitan areas. Settlements include measures to implement city-wide green infrastructure—including planning green streets and parks, installing infiltration basins, stormwater capture cisterns and bioswales, and zero trash capture devices—measures that will transform urban water management, augment groundwater supplies, restore the urban creeks, benefit endangered species populations, and provide amenities to city dwellers via pocket parks and other green infrastructure features. In essence, the Keeper’s litigation has given those municipalities a mandate to connect the community to healthy creeks while enhancing drought resiliency and climate adaptation. Lawyers for Clean Water is participating in ongoing campaigns to expand MS4 enforcement, with the goal of transforming the way California cities manage stormwater.
Stormwater enforcement and compliance oversight
Stormwater runoff from industrial facilities is a leading source of pollution to California’s waterways, and with every rain event toxic metals, trash, pathogens, and other pollutants associated with industrial activities discharge into area surface waters. These polluted stormwater discharges damage ecosystems and further degrade already impaired water quality. Lawyers for Clean Water represents environmental groups throughout California that enforce Clean Water Act protections [link to Industrial Storm Water Permit?] against pollution related to industrial stormwater discharges and require industrial dischargers to lower, or eliminate, contaminants running off their facilities. These enforcement actions focus on working with dischargers to implement data-driven stormwater controls, rather than engaging in litigation, and to assist with ongoing monitoring of pollutant levels as part of Clean Water Act consent decrees.
SSOs enforcement and compliance oversight
Sewage collection systems throughout the nation discharge hundreds of thousands of gallons of raw or partially treated sewage containing bacteria, viruses, and other pollutants to waterways each year. Sewage discharges pose a serious threat to California’s beaches, streams, rivers, and bays, and to the public that uses and enjoys these waters. Lawyers for Clean Water represents clients in state and federal proceedings to require municipalities to properly operate and maintain sewage system infrastructure and collection systems. The goal of these legal actions is to keep raw sewage out of our waterways and off our beaches [link to Heal the Bay beach report card?]. Accurate reporting and monitoring of sewage spills and whether they enter surface waters are critical components in the settlements that Lawyers for Clean Water negotiates on behalf of its clients.
Permits Ensuring Waste Discharge Requirements and National Pollution Discharge Elimination System permits under state and federal law contain meaningful and enforceable terms and conditions to prevent pollution and degradation of surface waters and ground waters is a critical to protecting and preserving our quality of life. Lawyers for Clean Water advises and represents clients in public notice and comment proceedings related to the adoption of WDRs and NPDES permits under state and federal law. Through these efforts, Lawyers for Clean Water assists clients in protecting their local waterways, and holding regulatory agencies accountable to fulfill their public interest mandates.
303(d)/305(b): The Clean Water Act requires states to identify, list and report water bodies that do not support their federally designated beneficial uses, such as endangered species habitat and recreation, due to pollution. This list and report is commonly referred to as a state’s 303(d)/305(b) integrated report [link to 303(d)/305(b) website?], and serves as a vital tool in addressing California’s impaired waterways. Lawyers for Clean Water is actively engaged in ongoing administrative processes throughout California to ensure that the state’s 303(d)/305(b) integrated report is accurate and provides a robust analysis of all impairments, including from altered flows, to the state’s waters, as required by the Clean Water Act.
Federal Endangered Species Act
Dams have significant negative impacts on downstream riparian and aquatic ecosystems downstream, and block access to upstream habitat for aquatic species. The Endagered Species Act prohibits activities that result in the killing or harming (take) of endangered and threatened species. Lawyers for Clean Water represents clients in actions against dam owners and operators for taking endangered species, including mammals, birds, amphibians, reptiles and fish that are killed or harmed by degradation to their habitat caused by dams.
Impacts of Federal Actions on Endangered Species
The Endangered Species Act requires consultation with the National Marine Fisheries Service or the Fish and Wildlife Service on any activity requiring federal permit or authorization that may impact these species. Lawyers for Clean Water represents clients in actions alleging that the required consultation either did not occur as required, was not conducted pursuant to required procedures, or produced an inadequate assessment of impacts and or mitigating measures that will not protect and recover the species as required.
Lawyers for Clean Water assists clients seeking to obtain federal and state Endangered Species Act protection for species threatened with extinction. Protecting these species is a critical step in restoring ecosystems and waterways, as it ensures that resource management decisions take impacts to these species into account, and include measures that will conserve and recover the native biological diversity that define the places our clients protect.
Waste and Unreasonable Use
The California Constitution mandates that all water resources in California be put to reasonable and
beneficial use to the fullest extent of which they are capable and that those vital resources not be wasted. This constitutional “reasonable use doctrine” is the overriding principle in California water law, which governs all uses of water ranging from diversions of instream flows and groundwater pumping to allocation of recycled water. The reasonable use doctrine also protects all beneficial uses of California’s waters including municipal water supply and fish and wildlife habitat. Lawyers for Clean Water is currently representing several organizations in a campaign to enforce the constitutional reasonable use mandate to prevent excessive diversions and over pumping of instream flows, to ensure recycled water is used reasonably and not wasted, and to compel development of additional recycled water resources needed to secure California’s water future.
§ 5937 cases
Thousands of dams, diversions, and over-appropriated rivers are killing fish across the American west. Continuing development pressure, subsidized agricultural use, regulatory failure at both the State and Federal level, and global warming have combined to create an unprecedented threat to the survival of salmonids and other migratory aquatic species. These species historically provided tens of thousands of well paying, and sustainable jobs in fishing, processing, and canning, and are the cultural core of many tribes. Collapsing fish populations have resulted in a social and spiritual downward spiral for coastal and riverine communities.
The majority of challenges to fish killing dams and diversions in the west have been reactive and piecemeal. Most environmental organizations addressing the issue primarily rely on voluntary efforts to increase flows or remove barriers. However these efforts are by definition complex, multi-agency and multi-party, and expensive processes, and are therefore very deliberate, decades to complete. These efforts are simply too costly and slow to prevent the extinction of salmon, steelhead, and other important species from the rivers of the west. To wit, voluntary efforts have had positive results on at most a handful of dams and diversions in California, while approximately 17,000 barriers to fish statewide continue killing fish.
California Fish and Game Code Section 5937 requires that “the owner of any dam shall allow sufficient water at all times to pass through a fishway, or in the absence of a fishway, allow sufficient water to pass over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.” Appropriate flow management can transform migratory fish habitat at little cost to end users. Yet enforcement by the Department of Fish and Wildlife is non-existent. San Luis Obispo Coastkeeper and Los Padres Forest Watch, represented by Lawyers for Clean Water, have launched the first case in a campaign to obtain water for fish by demanding compliance with Fish and Game Code Section 5937. This first 5937 case seeks water for endangered steelhead salmon in the Santa Maria/Sisquoc river system. More 5937 enforcement will follow.
Ecological Rights Foundtion v. Leland Stanford Junior University
Karuk Tribe and Klamath Riverkeeper v. Montague Water Conservation District
Humboldt Baykeeper v. Union Pacific
Santa Barbara Channelkeeper v. City of Santa Barbara
United States v. AVX Corporation (representing intervenor Buzzards Bay Coalition)
California Sportfishing Protection Alliance v. City of Stockton
San Luis Obispo Coastkeeper et al. v. Santa Maria Valley Water Conservation District
San Francisco Baykeeper v. Levin Enterprises, Inc., Civil Case No. 3:12-cv-04338-EDL (N.D. Cal. Aug. 17, 2012)
Santa Barbara Channelkeeper v. State Water Resources Control Board et al., Civil Case No. CPF-14-513875 (San Francisco Superior Court Sept. 19, 2014)
Wishtoyo Foundation v. State Water Resources Control Board et al., Civil Case No. BS159479 (Los Angeles Superior Court Dec. 8, 2015)