Ecological Rights Foundation v. City of Eureka

Background

The City of Eureka operates the Elk River Wastewater Treatment Plant under a Clean Water Act permit issued by the California Regional Water Quality Control Board, North Coast Region. Ecological Rights Foundation filed this action in March 2022, alleging that the City’s operation of the plant violated the Clean Water Act. The parties later reached an agreement, and the court entered their proposed consent decree on January 27, 2023.

Paragraph 39 of the consent decree states that if the Regional Board issues a new or reissued National Pollutant Discharge Elimination System permit that becomes final under applicable law and changes the Clean Water Act requirements reflected in the decree, the decree will be modified to reflect those requirements. The City must notify Ecological Rights Foundation of the new permit and identify the decree provisions it believes should be changed.

The Regional Board issued a new permit in October 2023 after a draft, public comments, and administrative proceedings. Ecological Rights Foundation appealed the permit to the State Board, which took no action for 90 days, resulting in a constructive denial. Ecological Rights Foundation then filed a state-court lawsuit challenging the permit. That lawsuit was still pending when the City filed its motion to modify the federal consent decree.

The parties’ arguments

The City argued that the 2023 permit was final because the Regional Board had completed its administrative process and no further administrative steps were available. Ecological Rights Foundation argued that the permit was not final because its state-court challenge could still result in changes to the permit. It also argued that principles of respect for state-court proceedings supported waiting for the state case to end, and that the City should remain bound by the existing decree.

The City requested 17 changes to bring the consent decree into alignment with the 2023 permit. Ecological Rights Foundation requested an opportunity to discuss the proposed changes individually and seek different compliance dates.

Court’s analysis

The court held that the City had the better argument on finality. The Regional Board had completed its administrative process, including issuing the final permit and constructively denying Ecological Rights Foundation’s administrative appeal. The court also noted that Ecological Rights Foundation’s state-court petition said it had exhausted its available administrative remedies and that state law required a final administrative decision before judicial review could be filed.

The court rejected the argument that the possibility of a future state-court ruling made the permit nonfinal. It reasoned that the state-court lawsuit challenged a final agency action; it did not make that agency action nonfinal. The court also concluded that respect for state proceedings supported, rather than opposed, modifying the federal decree so that it would align with the requirements set by the state agency.

The court further held that the consent decree was unambiguous. Because the decree required modification to reflect the requirements of a final new permit, it did not authorize negotiations seeking different dates from those imposed by the permit.

Disposition

The court granted the City’s motion to modify the consent decree. It ordered the parties to meet and confer only about whether the City’s proposed modifications reflect the terms of the 2023 permit. Within 28 days after entry of the order, the parties must file either a joint proposed amended consent decree or a joint letter brief of no more than 10 pages describing disputed modifications and each party’s position.