Camas To Be Sued For Federal Clean Water Act Violations
Updated: Aug 19, 2021
Camas - We Have a Problem, I Want To Help Solve It
Hey Camas, Leslie Lewallen here and I’m running for Camas City Council. I wanted to take a minute to be transparent with you about a very serious issue that arose today that affects us all. Today, I became aware that the City of Camas and the Lacamas Shores Homeowners’ Association were served with a citizen Notice of Intent to Sue for longstanding Clean Water Act violations impacting our city’s crown jewel - Lacamas Lake.
Here is the NOTICE in it's entirety:
This Notice to Sue should come as no surprise. We all know that Lacamas Lake is sick. Just last week Clark County Public Health issued another toxic algae warning for Lacamas Lake - meaning the lake is unhealthy for swimming, fishing, boating or kayaking - all the things we enjoy Lacamas Lake for.
I spoke of this possibility during the League of Women Voters candidate debate earlier this year. It doesn't take long to see the facts in this case and understand the risk factors and liability our City may face.
Fast Forward to 40:15 in the video below:
As a retired lawyer and hopefully your future councilmember, I feel a duty to transparently and effectively communicate about what I saw coming then and what it sadly looks like today - CAMAS- WE HAVE A PROBLEM. And no one at City Hall or in this election seems to understand it like I do. Years of environmental legal training and experience has helped inform me about the significant legal, economic and environmental impacts, years of municipal inaction will have on our great community.
Around 1988, when the Lacamas Shores subdivision was being built along Lacamas Lake, a Shoreline Permit was issued to construct and maintain a biofilter that could remove pollution in stormwater runoff coming from the new subdivision before that water eventually discharged into Lacamas Lake. Over the years, the biofilter was not properly maintained or cleaned out according to the permit requirements and began to fail. In fact, recent water samples showed that the water discharging into Lacamas Lake was actually more polluted than the upstream water flowing into the biofilter. And three separate pollutants, including phosphorus that helps create toxic algae blooms, were flowing into Lacamas Lake at levels well above Washington human health-based environmental limits. In fact, the biofilter is the only known contributor of phosphorus into Lacamas Lake proven to be exceeding state-issued compliance standards.
FEDERAL CLEAN WATER ACT
The original basis of today’s Federal Clean Water Act was enacted by Congress in 1948 and was called the Federal Water Pollution Control Act. Congress declared that the Act's purpose was "to provide a comprehensive program for preventing, abating, and controlling water pollution," and that it was congressional policy "to recognize, preserve, and protect the primary responsibilities and rights of the States in controlling water pollution."
Unfortunately, for a number of reasons, the States failed to effectively implement the 1948 Act and led to a series of significant environmental catastrophes - culminating in the Cuyahoga River event where one of the largest rivers in Ohio actually caught on fire due to all the oil pollution in the waterway.
This single event inspired Congress to significantly reorganize and expand what we now know as the Federal Clean Water Act (“CWA”) in 1972. Rather than leaving the States to manage water pollution, the federal government now prohibited the discharge of any pollutant into a lake, river or stream without a discharge permit.
CLEAN WATER ACT- CITIZEN SUITS
Also in 1972, Congress amended the CWA to empower citizens to bring their own private lawsuits to enforce the law and protect the environment where they work or live. Adding a citizen suit provision to the CWA sent a powerful message to the States because now citizens could force cities or agencies to take action to protect lakes or rivers when they clearly refused to do so in the past.
In fact, the federal courts have recognized that Clean Water Act citizen suits are a powerful tool to protect the environment and “serve as an antidote to legislative or executive inaction” through the means of a co-equal branch of government - the judicial system. See Student Pub. Interest Research Group v. Monsanto Co., 600 F. Supp. 1479, 1482 (D.N.J. 1985).
Clean Water Act citizen suits are a powerful tool to protect the environment and “serve as an antidote to legislative or executive inaction” through the means of a co-equal branch of government - the judicial system.
But Congress, in 1972, was wise enough to build in three restraints to exercising the citizen suit authority in the Clean Water Act to avoid overburdening the judicial branch with frivolous or baseless citizen suits that would waste valuable judicial time and resources. The three restraints are:
The city could not already be in litigation to stop pollution from impacting the lake or river;
The lake or river must be within jurisdiction of a federal agency like the United States Environmental Protection Agency or US Army Corps of Engineers; and
The citizen seeking to file the CWA lawsuit has to give the City or other parties 60 days notice to resolve the problem before filing the lawsuit in Federal Court.
Which brings us to the situation we are unfortunately faced with today. The three Congressional restraints noted do not prevent a citizen suit seeking protection of Lacamas Lake.
The City has done nothing to prevent the known pollution from discharging from the biofilter into Lacamas Lake. There is no lawsuit from the City to enforce Washington State’s water quality rules.
Lacamas Lake is a waterbody within federal jurisdiction, also known legally as a “navigable waterway of the United States” as set forth in a long string of United States Supreme Court cases.
A Camas citizen and homeowner filed a 60-day notice to sue with the City and the Lacamas Shores HOA today.
That means the City and HOA now have 60 days to resolve the biofilter pollution before the lawsuit is filed in the Western District of Washington federal court. It also puts the City and the HOA on notice of the potential fines and penalties for past and ongoing illegal pollutant discharges into Lacamas Lake.
POTENTIAL PENALTIES FOR CLEAN WATER ACT VIOLATIONS
Congress and the United States Environmental Protection Agency take water pollution very seriously. The CWA is a “strict liability” statute meaning that a city or party can be liable for water pollution violations without knowledge or intent to break the law.
Currently, a violator of the Clean Water Act is liable for penalties up to $54,460 per day, per violation. That’s a big number, right? But it’s potentially much worse than that in our case. Lacamas Lake water studies show that the biofilter is discharging three pollutants over state water quality limits from two separate discharge points or “outfalls.”. In calculating penalties, the CWA states that each pollutant and each outfall is a separate and distinct violation. So, for calculating potential per day penalties for the biofilter violations, it would be $54,460 times three to account for each of the three pollutants, and times two again to account for the two outfalls at the biofilter. Per the federal statute, that would be $325,000 per day, $10,000,000 per month or almost $120,000,000 per year.
Let’s do the math:
($54,460 x 3) x 2 = $326,760 per day
$326,760 x 365 days = $119,267,400 per year
$119,267,400 / 12 months = $9,938,950 per month
And, those penalties can be retroactively applied meaning that if it is proven that the biofilter has been illegally discharging pollution into Lacamas Lake for years, those penalties would apply to all past violations at a potential rate of $326,760 per day, $9,938,950 per month or roughly $120,000,000 per year.
WHAT DOES THIS MEAN FOR US?
What does this mean for us as Camas residents? How can we as citizens avoid having to pay for the potential bank-breaking penalties? While the effort to create task forces and multi-jurisdictional bodies to study the Lacamas Lake Watershed are laudable and needed, we cannot continue to ignore the problem staring us in the face right now. We need a coordinated and short-term plan in action to address the pollution coming from the biofilter. Developing a watershed plan and fixing the biofileter should not be mutually exclusive efforts. Both should commence concurrently - something I have been talking about since the inception of my campaign.
The city, along with the HOA, now have an obligation to correct the biofilter situation. The Lacamas Shores Homeowners Association biofilter must be fixed immediately with plans to maintain it indefinitely. Once the biofilter is cleared out, harvested and fixed, it will have an immediate impact on the overall health of the lake. Once the biofilter is fixed and is no longer the only known source of pollution into the lake, we will all have a better understanding and clearer picture of other potential sources of pollutants, and a better plan on how to keep our crown jewel safe for all to enjoy for decades.