By Katelyn Kinn, Legal Affairs Manager

Clean Water Act Enforcement

The federal Clean Water Act is a fundamental environmental law that aims to protect and restore our nation’s waters to be safely swimmable and fishable, with waters so designated to be safe for drinking as well. Soundkeeper enforces the Clean Water Act through community lawsuits against facilities in violation of state-issued pollution discharge permits. Currently, Soundkeeper is focusing on polluted stormwater runoff because it is the number-one source of toxic pollution to Puget Sound.

In January, Soundkeeper settled its Clean Water Act lawsuit against Total Terminals International, LLC. Total Terminals is a container shipping facility at Terminal 46 on Seattle’s waterfront, just south of the ferry dock. The facility discharges industrial stormwater to Elliott Bay. The out-of-court settlement came by way of a consent decree, a negotiated agreement entered in federal court.

Total Terminals InternationalThe court order requires Total Terminals to comply with the terms of its state-issued stormwater discharge permit. It also obliges them to follow through with a Department of Ecology order requiring them to install a stormwater treatment system in 2014. As a result of this settlement, Total Terminals has improved its operations in ways that protect the water quality in Elliott Bay. The court order also allows Soundkeeper to follow up with the facility’s progress and improvements through site visits, stormwater sampling and monitoring.

As part of the settlement, Total Terminals added $89,000 to the Puget Sound Stewardship and Mitigation Fund to fund third party projects that benefit water quality in Puget Sound.

At present, Soundkeeper has active Clean Water Act lawsuits against two large industrial facilities discharging polluted stormwater in Seattle. Stay tuned for more news on these actions in future updates.

Soundkeeper is represented in these actions by Richard Smith, Brian Knutsen, Claire Tonry, Elizabeth Zultoski, and Marc Zemel of Smith & Lowney LLP.

Permit Appeals

Clean water enforcement is only possible with meaningful permit standards.  To strengthen protections for the Sound, Soundkeeper appeals stormwater and wastewater permits issued under the Clean Water Act that fail to adequately protect water quality.

Industrial Stormwater General Permit (ISGP)

Supreme Court ISGP Appeal- claims dropped by industry

In 2011, Soundkeeper achieved victories in its appeal of the ISGP, successfully defending important permit requirements against industry attack and succeeding in making the permit more protective of water quality in Puget Sound. Shortly after the appeal was resolved, The Boeing Company appealed the decision to the higher courts. Last month, Soundkeeper was scheduled to defend the permit improvements before the Washington Supreme Court. However, in February Boeing dropped its case, putting an end to this proceeding.

ISGP Permit Modification Appeal- removal of fecal coliform effluent limit may stand

In 2012, Ecology modified the ISGP in a way that weakened requirements related to discharges of bacteria from industrial sites to impaired waterways. Soundkeeper appealed the modification, as illegal backsliding under the Clean Water Act and also because of its pertinence to several of Soundkeeper’s ongoing Clean Water Act lawsuits against industrial facilities. BNSF Railway and The Boeing Company also filed appeals. In late 2012, the parties filed motions before the Pollution Control Hearings Board, disagreeing on multiple issues.  In February, Soundkeeper withdrew its appeal based on analysis of a summary judgment ruling, the prospects for a successful ruling by the PCHB and to conserve resources. Unfortunately, it appears that the removal of the bacteria standards will now stand. Soundkeeper will remain a party so that it can counter industry pressure to weaken other provisions. Moving forward, Soundkeeper will focus on future ISGP monitoring results and permit enforcement.

Soundkeeper is represented in this appeal by Richard Smith, Smith & Lowney LLP.

Municipal Permits Update: Polluted stormwater runoff is the number-one source of toxic pollution to Puget Sound, and cities and counties represent the highest inputs of the theses contaminants by volume. In August 2012, new Municipal stormwater permits were issued for over 100 cities and counties, in part to comply with Soundkeeper’s previous victory requiring broad implementation of green stormwater infrastructure techniques (rain gardens, bio swales, pervious pavement, etc). Several municipalities have now appealed these new permits despite the clear benefits in improved stormwater management. In September, Soundkeeper, Washington Environmental Council and the Rosemere Neighborhood Association intervened in the appeal to defend the gains, including new requirements for green stormwater infrastructure. This appeal is moving forward.

Soundkeeper and partners receive pro bono representation in this appeal from Janette Brimmer, EarthJustice.

BP Cherry Point RefineryBP Cherry Point Refinery: BP West Coast Products has an oil refinery on an aquatic reserve north of Bellingham that discharges stormwater and wastewater to Georgia Strait, a water body which supports a critical stock of Pacific Herring, a keystone species in the Puget Sound marine food web. In 2012, Ecology issued the facility a new pollution discharge permit with inadequate provisions related to toxicity and the amount of pollutants that harm marine life. Soundkeeper, North Sound Baykeeper, and Friends of the Earth appealed the permit. So did BP West Coast Products. Some issues have been resolved because the parties have agreed on clarifications and improvements to several parts of the permit. However, disagreement remains on several key issues relating to the refinery’s wastewater discharges. The parties will argue these issues in a hearing before the Pollution Control Hearings Board in May.

Soundkeeper is represented in this appeal by Richard Smith, Smith & Lowney LLP.