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

United States District Court, Third Circuit

December 27, 2013

CITIZENS FOR PENNSYLVANIA'S FUTURE, Plaintiff,
v.
THE PITTSBURGH WATER AND SEWER AUTHORITY, CITY OF PITTSBURGH and THE BUNCHER COMPANY, Defendants.

MEMORANDUM OPINION

ROBERT C. MITCHELL, Magistrate Judge.

I. INTRODUCTION

Presently for disposition before the Court is Defendants', The Pittsburgh Water and Sewer Authority ("PWSA"), and the City of Pittsburgh's, Motion for Summary Judgment. [ECF No. 58]. For the following reasons, the Defendants' motion is granted in part and temporarily denied in part.[1]

II. BACKGROUND

The instant action is a citizen suit brought by Plaintiff, Citizens for Pennsylvania's Future ("PennFuture") and against Defendants the Pittsburgh Water and Sewer Authority ("PWSA") and the City of Pittsburgh ("the City"). PennFuture alleges that defendants violated section 505 of the Federal Water Pollution Control Act ("Clean Water Act"), 33 U.S.C. § 1365 and section 601 of the Pennsylvania Clean Streams Law ("Clean Streams Law"), 35 P.S. § 691.601 by failing to enforce ordinances enacted pursuant to those laws in connection with discharges of storm water from a municipal separate storm sewer system to the Allegheny River.

PennFuture is a public interest membership organization that seeks to enforce environmental laws and advocates for the transformation of public policy to restore and protect the environment and safeguard the public health.

NPDES Permit

On or about September 29, 2004, the Pennsylvania Department of Environment 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). Statement of Material Fact [ECF No. 60] at ¶ 1.[2] The NPDES Permit generally authorized the City and PWSA to discharge stormwater from their MS4s into the Monongahela, Allegheny and Ohio Rivers. Id. The permit also 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.

To achieve this purpose, the permit required that the stormwater management program implement six "minimum control measures" to control stormwater by:

(1) establishing a program of public education and outreach about the impacts of stormwater pollution on water bodies,
(2) providing for public participation in the development and implementation of a stormwater management program,
(3) establish and enforce a program to detect and eliminate illicit discharges to the MS4,
(4) establishing and enforcing a program to reduce pollution from construction site stormwater runoff to the MS4,
(5) establishing and enforcing a program to reduce pollution from post-construction stormwater runoff to the MS4 at new and redeveloped construction sites, and
(6) establishing a program of reducing pollution from municipal operations through employee training and good housekeeping procedures.

Id. at 4.

The DEP also set forth a model stormwater management program it deemed the "Protocol" which permittees could either adopt to conform to the requirements of the permit, or, the permitee could develop its own stormwater management program, provided it was approved by the DEP. Id. According to the permit requirements, minimum control measures 3, 4, and 5 required that defendants enact ordinances to implement those portions of the stormwater management program.[3]

In August 2003, the DEP created a stormwater ordinance to guide municipalities to meet the permit requirements. Pl.'s Br. in Op. of Mot. for Summ. J. [ECF No. 65] at 4. However, it was not required that the DEP's model ordinance be adopted verbatim. Id.

In 2007, the City amended Title X of the City Code to implement a stormwater management program that complied with the NPDES Permit. Defs.' Statement of Material Facts [ECF No. 60] at ¶ 6; See also 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 differed from the model ordinance fashioned by the DEP in some respects. 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 Code §§ 1003.01(gg), 1003.06(a)(2)(J). The term "Green Infrastructure" was defined as "[t]he use of natural systems to help absorb, infiltrate, evaporate or re-use stormwater runoff, including but not limited to rain barrels and cisterns, roofs covered with vegetation and plantings, tree boxes, rain gardens and pocket wetlands. See 2007 City Code § 1003.01(gg). 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 tradition 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 ...


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