Puget Soundkeeper Alliance v. Port of Tacoma, 104 F.4th 95 (9th Cir. 2024).
Puget Soundkeeper Alliance (“Puget”) is an environmental organization concerned with water quality in Puget Sound. It brought a citizen suit under the Clean Water Act (“CWA”) against the Port of Tacoma, alleging that the Port had violated the Act in various respects. The marine cargo terminal contains a portion of the terminal where five large cranes load and unload container ships, commonly referred to as “the Wharf.” When rain falls on the terminal, stormwater runs into Puget Sound, carrying with it metals and other pollutants. The district court granted partial summary judgment to the Port, holding that the Industrial Stormwater General Permit (“ISGP”) does not extend coverage to the entire footprint of facilities but only to the parts “associated with industrial activity.” Because such activities do not occur at the Wharf, discharges from there do not require permits.
The Ninth Circuit vacated and reversed in part the district court’s partial summary judgment in favor of the Port and held that the plain text of the ISGPs required “a transportation facility conducting industrial activities implement stormwater controls across the entire facility.” Because the terminal was a facility conducting industrial activities, the permits extended CWA discharge requirements to all discharges from the whole facility, including the Wharf. The panel further reasoned that “the nature of the facility, not the nature of the discharge, determines whether there is coverage.”
Separately, the Port of Tacoma challenged the 2020 ISGP before the Washington State Pollution Control Hearings Board. The Washington Court of Appeals reviewed the board’s decision and issued a decision in accordance with the one from the Ninth Circuit. The port’s appeal is pending before the Washington Supreme Court.
Glen Hansen is Senior Counsel and Simyllina Chen is a Law Clerk at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.