Citizens for Pennsylvania's Future v. Pittsburgh Water & Sewer Authority

13 F. Supp. 3d 493, 44 Envtl. L. Rep. (Envtl. Law Inst.) 20083, 2014 WL 1356134, 78 ERC (BNA) 2158, 2014 U.S. Dist. LEXIS 47409
CourtDistrict Court, W.D. Pennsylvania
DecidedApril 7, 2014
DocketCivil Action No. 12-943
StatusPublished
Cited by2 cases

This text of 13 F. Supp. 3d 493 (Citizens for Pennsylvania's Future v. Pittsburgh Water & Sewer Authority) is published on Counsel Stack Legal Research, covering District Court, W.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Citizens for Pennsylvania's Future v. Pittsburgh Water & Sewer Authority, 13 F. Supp. 3d 493, 44 Envtl. L. Rep. (Envtl. Law Inst.) 20083, 2014 WL 1356134, 78 ERC (BNA) 2158, 2014 U.S. Dist. LEXIS 47409 (W.D. Pa. 2014).

Opinion

MEMORANDUM OPINION

ROBERT C. MITCHELL, United States Magistrate Judge.

I. INTRODUCTION

Presently for disposition is the Defendants’, Pittsburgh Water and Sewer Authority’s (“PWSA”) and the City of Pittsburgh’s (the “City”), Renewed Motion for Summary Judgment [ECF No. 71]. For the following reasons, the Defendants’ motion is granted in part and denied in part.1

II. BACKGROUND

Defendants have previously moved for summary judgment on the basis argued herein, however because of the lack of legal authority in both parties’ briefs justifying the applicability of the 2010 Ordinance, this court temporarily denied sum[495]*495mary judgment, and permitted the parties to re-brief the issue. Therefore, because the motion before the court is a renewed motion for summary judgment, this court will only discuss the facts necessary for the disposition of the renewed motion.

The instant action is a citizen suit brought by Plaintiff, Citizens for Pennsylvania’s Future (“PennFuture”) and against Defendants for alleged violations of Section 505 of the Federal Water Pollution Control Act (“Clean Water Act” or “CWA”), 33 U.S.C. § 1365 and Section 601 of the Pennsylvania Clean Streams Law (“Clean Streams Law”), 35 P.S. § 691.601. Plaintiff generally argues that Defendants failed to enforce ordinances enacted pursuant to those laws in connection with discharge of storm water from a municipal separate storm sewer system to the Allegheny River.

In September 2004, the Pennsylvania Department of Environmental Protection (“DEP”) issued the City and the PWSA a National Pollutant Discharge Elimination System (“NPDES”) Permit for stormwater discharges from small municipal separate storm sewer systems (MS4s). This permit authorized the Defendants to discharge stormwater from their MS4s into the Monongahela, Allegheny and Ohio Rivers. The permit required that Defendants “implement a stormwater management program approved by [the DEP] ... to reduce the discharge of pollutants from its [MS4s] to the maximum extent practicable ... with the goal of protecting water quality and satisfying the appropriate water quality requirements of the federal Clean Water Act.” NPDES Permit No. PAI136133 [ECF No. 1-3] at 4.

Under the NPDES Permit’s terms, the City and PWSA could either adopt the DEP’s model stormwater management program, or develop its own stormwater management program, provided such program was approved by the DEP. The City and PWSA decided to develop its own stormwater management program that was subsequently approved by the DEP.

Further, the permit required that the City and PWSA enact certain ordinances to fulfill the NPDES permit obligations. Specifically, the permit required that ordinances be enacted to address (1) illicit discharge detection and elimination; (2) construction site runoff control; and (3) post-construction stormwater management in new development and redevelopment. Id. The specific language of the NPDES Permit was as follows:

Illicit Discharge Detection Elimination
Implement and enforce a program to detect and eliminate illicit discharges into the MS4:
• Enact an ordinance prohibiting non-stormwater discharges into the MS4;
• Implement appropriate enforcement procedures and actions for the ordinance
Construction Site Runoff Control
Implement and enforce a program to reduce pollution in any stormwater runoff to the MS4 from construction activities that result in a land disturbance of greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale that equals one acre or more:
• Enact an ordinance to require erosion and sediment controls, as well as sanctions to ensure complianee[.] ...
Post-Construction Stormwater Management in New Development and Redevelopment
Implement and enforce a program to reduce pollution in any stormwater runoff to the MS4 from new development [496]*496and redevelopment projects that result in a land disturbance of greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale that equals one acre or more:
• Use an ordinance to address post-construction runoff from new development and redevelopment projects[J

Id. Additionally, the NPDES permit set forth additional conditions to which the permittees were subject to including a “continuing responsibility” clause. It provided: “No condition of the permit releases the permittee from any responsibility or requirements under other federal or Pennsylvania environmental statutes or regulations or local ordinances.” Id.

In 2007, the City enacted certain ordinances to implement a stormwater management program that complied with the NPDES Permit. Defs.’ Statement of Material Facts [ECF No. 60] at 6; PL’s Appendix [ECF No. 69] at 65 (copy of City of Pittsburgh Zoning Code (“2007 City Code”) § 1001.04(b) (2007)). The 2007 Ordinance enacted by the City differed from the DEP’s model ordinance in some respects in that it imposed greater restrictions than the DEP’s model ordinance. First, the City’s ordinance contained a definition of “Green Infrastructure” and required its use at developments to control stormwater wherever “applicable and feasible.” 2007 City §§ 1003.01(gg); 1003.06(a)(2)(J).2 The DEP model ordinance had no such requirement. Second, both the 2007 City ordinance and the DEP model ordinance described “low impact development practices” which promote the use of natural hydrologic conditions in development designs to minimize post-development runoff rates and volume rather than using the traditional approach of removing runoff from sites as quickly as possible. While the DEP model ordinance “encouraged” the use of low impact development practices, the City’s enacted ordinance “required” their use in site design “whenever practical” and further required that a qualified professional certify any claim that low impact development practices were not practical. 2007 City Code § 1003.04(b)(4).

In 2010, the 2007 Ordinance was amended to “provide more protective stormwater volume reduction standards and low impact development ... strategies for planning and construction of’ publieally funded development and redevelopment projects. PL’s Appendix [ECF No. 69 at 107] (copy of City of Pittsburgh Zoning Code (“2010 City Code”) §§ 1003.01(gg) and 1003.06(a)(2)(J) (2010)). This amendment imposed greater restrictions by requiring the use of low impact development practices and green infrastructure on publieally funded development and redevelopment projects to the “maximum extent technically feasible,” as opposed to “whenever practical” under the 2007 Ordinance. Id. Further, to substantiate a claim that the use of low impact development practices was infeasible, the developer had to provide the opinion of a qualified professional and incorporate that opinion into the stormwater site management plan. Id. Further, the reviewing body3 had to approve of the [497]

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13 F. Supp. 3d 493, 44 Envtl. L. Rep. (Envtl. Law Inst.) 20083, 2014 WL 1356134, 78 ERC (BNA) 2158, 2014 U.S. Dist. LEXIS 47409, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-for-pennsylvanias-future-v-pittsburgh-water-sewer-authority-pawd-2014.