From Hamilton Hackney of GT Boston:

The recent dismissal of a stormwater citizens suit may offer some lessons for potential targets of similar suits in the future.  Conservation Law Foundation v. Patrick, C.A.No. 06-11295 (D. Mass. Apr. 14, 2011).  Brought in 2006 by three environmental advocacy groups, the case alleged the Massachusetts Department of Transportation (MassDOT) failed to comply with its NPDES Small Municipal Separate Storm Sewer System (MS4) permit.  Following trial in 2008, the court found that MassDOT has contributed to exceedances of water quality standards at three sites, that its Stormwater Management Plan failed to comply with the terms of the MS4 permit, and that MassDOT was not adequately assessing the effectiveness of its stormwater control measures.  The court declined to grant the plaintiffs’ request for injunctive relief at that time, and allowed MassDOT to proceed on an unspecified schedule to address these deficiencies.

Two years later, MassDOT having failed to take sufficient action, the court enjoined MassDOT to address exceedances of water quality standards at three facilities, and to address deficiencies in its Stormwater Management Plan regarding stormwater discharges to impaired waterbodies with and without Total Daily Maximum Loads (TMDLs).  Based in part on this failure, the Court recently awarded Conservation Law Foundation $386,925.95 for attorneys’ fees and $59,718.08 for costs.  MassDOT proceeded to comply with that order, submitted various plans and reports to the Court, and subsequently moved for entry of judgment at the end of 2010. 

The court recently granted MassDOT’s motion, over the plaintiffs’ opposition and motion for additional injunctive relief. In addition to finding that MassDOT had made sufficient progress under the earlier injunctive order, the court noted its reticence to “engage in ongoing supervision of the technical aspects of MassDOT’s activities,” which were within MassDOT’s professional judgment and outside the court’s expertise. The court also noted, based on federalism concerns, its reluctance to engage in decision-making that could dictate how state funds would be expended. 

Filed some five years ago, this case presaged the growing wave of stormwater citizen suits which are being filed against public and private facilities discharging stormwater. (For instance, a similar action was filed last year against the Boston Water and Sewer Commission, into which USEPA Region I recently intervened). For state and local public entities, this case suggests that federal courts may be reluctant to impose overly harsh or lengthy injunctive relief obligations, and may be inclined to accept a reasonable compliance plan and reasonable efforts to implement it.  Given the court’s explicit reference to “federalism” concerns in this case, private entities should not, however, anticipate the same degree of deference in the event they become the target of a citizens suit. One thing that can be reasonably anticipated, however, is a continuing increase in the number of these stormwater citizens suits – against both public and private entities.