Updated: Aug 20, 2021
Welcome to "Ask Leslie!", a place where you can ask questions, and I'll do my best to answer them directly.
Today's Facebook Question: (regarding the Lacamas Lake biofilter case) "Would the fines trickle down to taxpayers (increasing taxes) or would the HOA be held solely responsible for paying the fines?" -Wayne Christensen
Leslie’s Response: Great question, Wayne! It addresses one of the major concerns I have been raising throughout my campaign about Lacamas Lake and the biofilter. Who is going to pay for fixing the biofilter and paying the potential significant federal penalties if or when a lawsuit is filed?
I have run my campaign on the important principle of transparency. Before I provide my thoughts, I just want to be transparent with you that I am a retired lawyer. While I am not actively practicing at this time, I am a published author of 3 law review articles with years of experience with environmental legal issues both in private practice and as a judicial law clerk of the Washington State Supreme Court.
The information shared below is not “legal advice,” but is meant to educate Camasonians and bring transparency to the issues presented by the Notice of Intent to Sue letter. No sides. No agenda. I just want to explain how I read the letter and what I think it may mean for Camasonians. If you want legal advice on how the Notice of Intent to Sue letter could impact you personally, I encourage you to seek legal advice from your attorney.
“Owner Liability” and “Controller Liability” Under the Clean Water Act: According to the allegations in the Notice of Intent to Sue letter, both the HOA and the City are potentially liable for the unlawful pollution discharges.
The party who owns the biofilter (The HOA in our current case) could be potentially liable for unlawful discharges into Lacamas Lake. This is generally known as “Owner Liability.”
But, federal courts in the Ninth Circuit (which includes Washington State) have gone further to extend potential liability to parties that exercise “sufficient control” over the owner of the property where the unlawful discharges occur (again, the biofilter in our current case). The prominent federal case explaining this concept, which comes from our own state, is Puget Soundkeeper Alliance v. Cruise Terminals of America, a 2015 case from Judge Coughenour out of the Western District Federal Court in Seattle holding that a party may be liable under the CWA for unlawful stormwater discharges if it exercises sufficient control over the “facility” (the biofilter) responsible for the discharge, even if the party did not create the discharge.
The elements to prove “Controller Liability” are straightforward. The Clean Air Act broadly prohibits the unauthorized discharge of pollutants by any party – even if that party does not actually cause the discharge – if it can be established that party: (1) possessed sufficient control over the source of the discharge (the biofilter in our case); and (2) had knowledge of the alleged discharge violations.
In other words, potential liability for the unlawful discharges to Lacamas Lake is not limited to the party that “owns” the biofilter causing the pollution to enter the lake or even who “owns” Lacamas Lake. Instead, the Clean Water Act, and the federal courts interpreting that statute, extends potential liability to parties that “sufficiently controlled” whether or not the discharge could have been prevented from occurring in the first place or stopped it from occurring once they became aware of the unlawful discharge. That is generally known as “Controller Liability.”
Applying the Concepts of “Owner Liability” and “Controller Liability” Under the Clean Water Act to the Biofilter Case: As the Notice of Intent to Sue alleges, the HOA is potentially liable because it owns the property on which the biofilter is located and is responsible for monitoring and maintaining the biofilter. But, the City is also potentially liable because it exerted “sufficient control” over the biofilter and had knowledge of the unlawful discharges to Lacamas Lake.
According to the position set forth in the letter and its attached public records, the City: (1) told the HOA it could not conduct maintenance of the biofilter without a permit; (2) stated the HOA would not be able to obtain a permit to maintain the biofilter; (3) threatened to bring enforcement proceedings against the HOA, including possible criminal charges, if the HOA repaired the biofilter without a permit; and (4) had knowledge of the unlawful discharges in 2019 or 2020, and arguably as early as 2016.
The Notice of Intent to Sue letter stated that these series of alleged actions prevented the HOA from fixing the broken biofilter. And, the City had knowledge that the unlawful discharges into Lacamas Lake were occurring. Therefore, the Notice of Intent to Sue Letter alleged that the City exerted “sufficient control” over the biofilter to assume “Controller Liability” in this case.
Strict Liability Under the Clean Water Act: Beyond the owner and controller liabilities discussed above, the Clean Water Act is a “strict liability” statute. That means violators may be held liable for unlawful discharges regardless of the violator’s knowledge of the legal requirements or intent to comply with or violate the law. The Clean Water Act does not provide any statutory defenses. If the citizen proves that unlawful discharges were coming from the biofilter into Lacamas Lake, the HOA (as the potential Owner) and the City (as potential Controller) would have to sort out who is ultimately liable - the HOA, the City, some other party who has yet to be identified, or possibly all liable parties together in some form of cost sharing agreement.
Interestingly, the Notice of Intent to Sue letter mentioned that the Washington Department of Ecology issued an opinion around 2016 stating that it would not issue a permit to authorize the HOA to fix the biofilter. Although Ecology issued that opinion, the Notice of Intent to Sue letter asserts that such opinion makes no difference here. The letter alleged that Ecology’s position, right or wrong, does not provide an absolute defense to the HOA or the City for the pollution discharge violations either. Instead, the citizen suit letter stated that the Clean Water Act is a strict liability statute - whether a party intended or knew it was violating the statute or believed it was following the law - Ecology’s position on the matter, in itself, is not a defense from liability under the Clean Water Act.
So, What Does That Mean For Us Camasonians?: In short, based on allegations set forth in the Notice of Intent to Sue letter, the City – and ultimately us the taxpayers – are potentially liable for this.
Which is why I said in my video I shot right after I heard of this potential lawsuit, “Camas – we have a problem.” It doesn’t necessarily matter who “owns” the biofilter or who “owns” Lacamas Lake, as some may believe. Lack of “ownership” of the offending pollution source or the waterbody being polluted is not an absolute defense to liability when it comes to polluting navigable waters like Lacamas Lake.
Now the clock is ticking. 60 days before the lawsuit is filed. As citizens of Camas, we should stay very engaged on this issue. While developing a comprehensive Lacamas Lake Watershed Plan is needed to protect the long-term sustainable health of our lake, we should all be part of the process to solve this serious problem staring us in the face today. We all want a clean, healthy and sustainable Lacamas Lake. Protecting Camas’ natural resources and recreational areas is important to all of us. And, as you can understand now, we all potentially have a financial interest in fixing this biofilter problem before the 60 day period ends and this matter winds up in federal court.
There is a Solution and Camas Deserves Better: Wayne, my answer to you so far contains some really sobering thoughts. I get that. But, I want to share some good news with you. The Clean Water Act gives us 60 days to figure out a solution. 60 days for the HOA, the City, Ecology and Camasonians to work together to both fix the biofilter and avoid paying the United States Treasury millions of dollars in federal Clean Water Act penalties. I am optimistic a solution can be developed that all the parties can agree upon and effectively implement that solution in a timely manner to avoid the filing of a federal lawsuit and potentially paying significant fines to the federal government, state government, or both.
In another post, I’ll try to explain in greater depth what happens during the 60-day citizen suit notice process and why these next 8 weeks are very important to all of us. Accountability, transparency and effective leadership during these next 60 days are critically needed to avoid the risks we all face if this matter goes to federal court.
If you want to read the Notice of Intent to Sue letter for yourself or learn more about this important matter, please go to my website at LeslieForCamas.com. Hope this is helpful, Wayne, and thanks again for your great question.
*The information provided on leslieforcamas.com does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Readers of this website should contact their attorney to obtain advice with respect to this or any other particular legal matter.