June 10, 2024 

Contact: Nicole Loeffler-Gladstone, Puget Soundkeeper Communications Manager 

 nicole@pugetsoundkeeper.org, 206-297-7002 x109 

The 9th Circuit Court of Appeals ruling will help prevent excessive stormwater pollution in waterways across Washington State 

Tacoma, WA (June 10th, 2024). Industrial waterfronts in Tacoma and across Washington State will get some relief from toxic stormwater discharges, thanks to a legal decision by the federal 9th Circuit Court of Appeals issued today. As argued by Puget Soundkeeper in its environmental enforcement case first brought almost a decade ago, the Circuit Court found that the Port of Tacoma and SSA Terminals (together the “facilities”) are responsible for controlling all stormwater pollution generated everywhere across their state-permitted facilities, including areas like docks and wharves built over waterways.  

“Today’s decision supports what Puget Soundkeeper and the Department of Ecology have maintained all along, and what the Washington State Court of Appeals has already ruled: that transportation facilities are responsible for the full extent of their industrial footprint and the entirety of their stormwater discharges,” said Emily Gonzalez, Puget Soundkeeper Attorney and Director of Law & Policy. “Soundkeeper will continue to advocate for comprehensive water quality protections and work with government, industry, and communities to protect the health of our waters and all that rely upon them.” 

The Port of Tacoma has overseen elevated levels of copper and zinc discharges into West Sitcum Waterway for more than a decade, with pollution violations occurring across multiple Port tenants. The Port and its industrial tenants argued that their state-issued industrial stormwater permits (“ISGP” or “Permits”) only apply to limited subsections of their total industrial footprints. Today, the Circuit Court found the opposite – that these Permits apply wherever pollution control is needed across the entirety of an industrial site.  

“The rivers, wetlands, harbors, and watersheds of the state – and the communities that live and work there – are overburdened by myriad sources of industrial pollution,” said Sean Dixon, Puget Soundkeeper Executive Director. “Today’s decision, which closes the book on a proposed loophole in environmental protection, is incredibly significant for Tacoma’s frontline communities and impacted waterways and will help protect clean water across Washington State.”  

Puget Soundkeeper initiated a lawsuit against prior Port of Tacoma tenant APM Terminals in 2016. APM vacated its site and cancelled its permit in 2017, at which point Puget Soundkeeper added the Port to its legal action, arguing that the Port, as landlord, has control over its tenants and is liable for pollution violations during APM’s tenancy, and after its departure. Once APM vacated the site, the new tenant, SSA Terminals took over the facility and Soundkeeper added it to the case. The Port of Tacoma argued that its 2010 and 2015 NPDES permits only pertain to certain facility areas, not the site as a whole.  

Today, the 9th Circuit Court found SSA and the Port responsible for controlling stormwater across the entire footprint of transportation facilities. The Court also affirmed that public interest environmental enforcement lawsuits brought by groups like Puget Soundkeeper under the “citizen suit” provisions of the federal Clean Water Act can enforce all conditions of a NPDES Permit, thus upholding a well-established precedent and tool for protecting clean water.  

“We are very pleased with this decision, which is the result of a long and hard-fought battle. In addition to the obvious benefits to the environment, the Ninth Circuit also rejected industry’s attempt to force a non-profit to pay their attorneys’ fees. This should be encouraging to all such groups, who should not fear bringing lawsuits to enforce environmental laws, as is their right,” said Alyssa Koepfgen of Smith & Lowney, outside counsel for Puget Soundkeeper Alliance. 

This decision mirrors many of the findings made by the Washington State Court of Appeals earlier in 2024 in a case involving Puget Soundkeeper, the state Department of Ecology, and many waterfront industrial site entities. In that case, which is currently pending discretionary review in the Washington State Supreme Court, the appellate review also concluded that the permit applies to pollution discharges from across a facility’s entire footprint. 

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Since its establishment in 1984, Puget Soundkeeper has worked to protect and enhance the waters of Puget Sound for the health and restoration of aquatic ecosystems and the communities that depend on them. A founding member of the global Waterkeeper Alliance, Puget Soundkeeper has advocated for the public’s right to clean water for 40 years. 

Puget Soundkeeper is represented in these actions by Smith & Lowney.