The City of Fort Bragg: City faces lawsuit over wastewater violations

Neil Boyle / The Advocate / February 22, 2001

The City of Fort Bragg has been put on notice by a Northern California environmental group known as River Watch that it intends to file a lawsuit seeking monetary penalties for five years’ worth of alleged violations of the Federal Clean Water Act by the city’s wastewater treatment plant. Fort Bragg is not alone. River Watch, a non-profit organization centered in Sonoma County, has threatened to, or already initiated litigation for discharge violations in Eureka, Fortuna, Santa Rosa, Cotati and other Northern California cities for similar violations.

The Notice of Intent to file the lawsuit was received by city officials on Feb. 5, and sent by attorney Jack Silver of the Northern California Environmental Defense Center in Sebastopol. The notice is required by law 60 days prior to initiation of civil action. Silver did not return an inquiry call placed last week. On Monday, a receptionist at the law firm said Silver is out of the country until March 1, and that no one else in the four-attorney firm is able to comment on the planned suit.

Fort Bragg’s treatment plant discharges into the ocean and is regulated and permitted by the state’s Regional Water Quality Control Board. However, the Clean Water Act includes a provision which allows citizens or public groups to file suit if the agency is not enforcing water quality regulations.

The Notice of Intent to File Suit states:
“The [wastewater treatment
facility] has chronic pollution problems associated with, among other things, its antiquated collection system, undersized facility, old equipment and inconsistent maintenance schedule.” It adds that the Environmental Protection Agency and the State of California “have formally concluded that violations by Fort Bragg of its [National Pollutant Discharge Elimination System] permit are prohibited by law. Beneficial uses of the Pacific Ocean in the vicinity of the facility are being affected in a prohibited manner by these violations.”

From Feb. 1, 1996, through Feb. 1, 2001, Fort Bragg has violated its permit, the Basin Plan and federal codes for discharge limitations, effluent limitations, outflow water limitations, monitoring and reporting requirements as reported by Fort Bragg in its monthly self-monitoring reports, and other documentation filed with the Regional Water Quality Control Board. The violations include unpermitted discharges due to failures in the collection system, according to the notice.

The listed violations in the Notice of Intent, subject to a penalty of up to $27,500 per day per violation for any which occurred within the last five years, at this point total 2,141. Among the violations listed are 1,340 failures to monitor or report monitoring of the effluent outflow into the ocean.

Other listed violations include discharge of raw sewage due to collection system wastewater overflows, treatment plant bypasses, discharges of partially treated waste, and other violations.

City officials respond:
Last Wednesday afternoon, city officials issued a press release stating, in part: “[City Manager Connie] Jackson said she and the City Council are extremely disappointed that City staff time and financial resources will be redirected from planning wastewater treatment plant improvements in order to defend the City’s interest in the proposed lawsuit. The city has been working closely with regulatory officials at the California Regional Water Quality Control Board to prepare and design improvements to the wastewater treatment plant facility.

“The City Council has placed a high priority by budgeting $2.5 Million Dollars for a Capital Improvement Program. This Program would upgrade the City’s facilities to ensure that the plant operates efficiently and in compliance with current and proposed future State regulations. These improvements are expected to be completed during 2002.”

In a Tuesday interview, Jackson said while working for the City of Hercules in the Bay Area, she had some experiences with groups which may be similar to River Watch, including the Bay Keepers and United Anglers.

Hercules, she said, settled by paying United Anglers’ attorneys fees and by making a monetary contribution to build a fish hatchery in another location, not in Hercules. “A settlement is different than putting the money where it needs to go. In our case, it needs to go to improvements at the treatment plant,” Jackson said.

The city has $800,000 set aside from a 1998 bond issue which is restricted by ordinance for capacity-enhancing improvements to the plant; it has collected another $320,000-plus in fees for new development with the specific purpose of completing improvements at the plant. City officials had intended on completing the planned improvements but that the work was delayed, Jackson said. Currently, the treatment plant improvement project is in design, and the city is simultaneously working closely with the Regional Water Quality Control Board on its discharge permit renewal and to identify violations.

“The city has no desire to pursue litigation or to spend money on attorneys as opposed to [treatment] plant improvements,” Jackson said. “The irony of the situation is that we’ll need to spend money to prepare to litigate if it’s necessary, and to potentially resolve concerns presented by River Watch.”

Jackson noted that on Jan. 1, 2000, a new law became effective which mandates penalties for some permit violations, and the Water Quality Control Board is evaluating penalties that may be applicable to Fort Bragg’s violations. It’s unknown whether the fines would affect River Watch’s planned lawsuit.

The League of California Cities had discussed the potential for River Watch-type lawsuits at its last quarterly meeting, Jackson said, and members asked the League to take a leadership role in helping to fix the provisions within the federal Clean Water Act which expose cities to unnecessarylawsuits.

“The main problem is that even a tremendous effort by California has a limited chance of success at the federal level,” she said. “But our policy makers need to be committed, and that message must get to federal legislators.”

She said that criminal sanctions already exist for treatment plant operators who are negligent. Due to current provisions, the Clean Water Act allows some groups to profit on cities which have a less than stellar history concerning treatment plant operations, but which have a strong commitment to upgrading their systems, she added.

Other cities:
The Fortuna City Council has enlisted a Sacramento-based law firm to defend that city against a River Watch suit, filed last September, also alleging five years of violations regarding treatment plant discharges into the Eel River.

In a Tuesday phone interview, City Manager Dale Neiman, said he disagrees with River Watch that the Regional Water Quality Control Board has not done its job overseeing Fortuna’s water treatment plant operations.

He noted that Fortuna, should it lose the suit, will be required to pay River Watch’s attorney fees and also put money aside for some type of environmental project.

Representing River Watch in that suit is attorney Kimberly Burr, one of the four attorneys at the Northern California Environmental Defense Center.

In a Dec. 7 article in The Humboldt Beacon, Burr said Fortuna has shown “delay, and not enough priority” on solving its discharge problems. She added that River Watch is “interested in keeping money where it needs to go. We would prefer settlement.”

Santa Rosa is currently defending itself in a similar suit regarding its wastewater treatment discharges. Asst. City Attorney Brien Farrell, contacted Tuesday, said the city learned of the litigation last April and
the case is working its way through Federal District Court. Because he’s
not directly handling the litigation he declined to comment further.

In Willits, Utilities Director Larry Moran said that city hasn’t been put on notice yet for a River Watch-inspired lawsuit. “We haven’t [been noticed] yet, but we’re sure they’re on their way. [River Watch] is not an environmental organization, just some people out there trying to get some money,” he added.

Ukiah City Manager Candace Horsley, also contacted Tuesday, said her city has so far been spared a River Watch lawsuit. “Ukiah appears to not have the type of violations [River Watch] is looking at. For Ukiah, it’s more luck than anything else, with what they can go after,” Horsley added. “But we’re taking a very serious look at all our [treatment plant] procedures.”

The City of Eureka received its notice of a planned River Watch suit at about the same time as Fort Bragg, according to David McGinty, the city’s director of community services.

“We haven’t made any public comment about it yet, pending review by the legal department and the city council,” he said.

River Watch unknown:
The Notice of Intent states that the discharge violations “effect the health and enjoyment of members of River Watch who reside and recreate in the City of Fort Bragg area. The members of River Watch use this watershed for domestic water supply, agricultural water supply, recreation, sports, fishing, swimming, shell fish harvesting, hiking, photography, nature walks and the like.”

However, attempts to contact River Watch or even find a phone number or Internet address for it were unsuccessful at press time. Moreover, neither city officials nor half a dozen persons active in the county’s environmental community have heard of the group.

Roanne Withers of Fort Bragg, who brought suit against the city two years ago for overdrafting on the Noyo River, was among those who hadn’t heard of River Watch. But after hearing of the flurry of suits being initiated by River Watch, she speculated the group is combing the files at the Regional Water Quality Control Board as a “money making thing.”

The Water Quality Control Board enforces discharge permits and can impose fines on violators, she said, adding: “But when the federal Clean Water Act was written, government realized government may not do its job, so citizens can take the role of government and cause the violator to come into compliance and get attorney fees for doing it.” Withers gave high marks to the job being done by the Regional Water Quality Control Board. “It’s probably the best regulatory agency in the state,” she added.

She said her 1998 suit against the city for overdrafting on the Noyo River was resolution-based the city can only draft water at high tide today and cost the city just a couple thousand dollars for legal representation. “We weren’t after fees, we were after compliance. Fish and Game says the resolution is not perfect, but it’s better than what [the city] was doing.”

Control Board:
The enforcement division at the Regional Water Quality Control Board returned several inquiry calls but did not reach the reporter by press time.