## Facts

- The City of Portland operated a combined sewer system carrying sewage and stormwater; during heavy rainfall, combined sewer overflows (CSOs) discharged excess effluent into the Willamette River and Columbia Slough.
- Northwest Environmental Advocates (NWEA) and a member sued over discharges from 54 CSO outfalls used during storms.
- Portland held an NPDES permit under Clean Water Act (CWA) § 402 that set effluent limits and incorporated Oregon water quality standards, including a condition barring discharges that violated standards except in specified zones.
- The permit did not separately list each CSO outfall or impose numerical effluent limitations specific to CSO events.
- The state agency that drafted the permit interpreted it as authorizing CSO events under certain conditions even though the CSOs were not separately enumerated.
- NWEA alleged (1) unpermitted CSO discharges and (2) ongoing violations of Oregon water quality standards during CSO events.
- The district court found the CSOs were covered by the permit and concluded it lacked jurisdiction to hear claims framed as water-quality-standard violations in a CWA citizen suit.
- An earlier Ninth Circuit decision affirming that limitation was vacated after an intervening Supreme Court decision, and the panel reheard the case.

## Issues

1. Whether the 54 CSO outfalls were unauthorized discharges or were covered by Portland’s existing NPDES permit.
2. Whether CWA § 505 authorizes citizen suits to enforce state water quality standards that are incorporated as conditions of an NPDES permit, including non-numerical standards.
3. Whether the dispute was moot given asserted changes in circumstances and the request for attorney’s fees and enforcement of water quality conditions.

## Decision

- The court affirmed the district court’s finding that the NPDES permit authorized CSO events under specific circumstances and that this finding was not clearly erroneous.
- The court held that CWA § 505 permits a citizen suit to enforce state water quality standards when those standards are incorporated as conditions of an NPDES permit and are allegedly violated.
- The court held the case was not moot because a live controversy remained, including claims for attorney’s fees and enforcement of water quality conditions.
- The court reversed the district court’s jurisdictional limitation and remanded for further proceedings consistent with the holding that water quality conditions in the permit are enforceable.

## Legal Principles

- Under CWA § 505(a)(1) and § 505(f), citizens may sue to enforce an “effluent standard or limitation,” which includes an NPDES “permit or condition thereof,” not only numerical end-of-pipe effluent limits.
- State water quality standards incorporated into an NPDES permit function as enforceable permit conditions in a CWA citizen suit.
- A permit-issuing agency’s interpretation and evidence of permitting intent may support treating discharges as covered even when particular outfalls are not separately listed, and appellate review of related factual findings applies a clearly erroneous standard.
- A claim is not moot where the plaintiff seeks relief tied to alleged permit-condition violations and attorney’s fees for past violations.

## Conclusion

The Ninth Circuit held that Portland’s CSO discharges were covered by its NPDES permit, but that the CWA citizen-suit provision allows citizens to enforce state water quality standards incorporated into that permit, and it remanded for proceedings on the alleged water-quality violations.


Nw. Env’t Advocs. v. City of Portland, 56 F.3d 979 (9th Cir. 1995)