Port of Seattle Potentially Liable for Tenant’s CWA Permit Violations

Last fall, Puget Soundkeeper (Soundkeeper) filed suit against the Port of Seattle (Port) and its tenant, Total Terminals International, under the citizen suit provisions of the Clean Water Act (CWA). Soundkeeper alleged that stormwater discharges from the marine cargo terminal exceeded the limits imposed by the Industrial Stormwater General Permit (ISGP) that covers the facility. The Port filed a motion to dismiss for lack of jurisdiction. The Port claimed that Soundkeeper failed to comply with a CWA notice requirement and argued that only the permittee, Total Terminals, could be held liable for violations of the discharge permit.

First, the court considered whether Soundkeeper failed to comply with the notice requirement. CWA citizen suits must give the defendant and the government 60 days notice of intent to sue. Soundkeeper delivered the notice letter to the Port in August 2018—the Port alleged that the notice was defective. Specifically, the Port claimed that the notice neglected to identify what the Port did wrong and when. The court disagreed, noting that the “fifteen-page notice letter, which includes a table of excess discharges of turbidity, copper, and zinc at specific monitoring points during most quarters from 2012 to 2018, specifies both the what and when of the alleged discharges as well as plaintiff’s theory regarding the Port’s responsibility for those discharges.”

The court next looked at whether Soundkeeper could bring the suit against the Port. Under § 301(a) of the CWA, the discharge of pollutants is unlawful unless the discharge is in compliance with the CWA. (33 U.S.C. § 1311(a)). Soundkeeper alleged that over the last six years, multiple discharges from the marine cargo facility exceeded the limits established by the ISGP. The group claimed that the Port shared liability for these discharges, as it exercised significant control and responsibility for the facility. The court agreed, ruling that although the Port is not the permittee, it could be held liable if it violated the ISGP through its acts or omissions. The court noted that the CWA citizen suit provision authorizes a lawsuit against “any person” that is “alleged to be in violation of ... an effluent standard or limitation” under the statute. (33 U.S.C. § 1365(a)(1)).

The court denied the Port’s motion to dismiss. If the court ultimately finds the Port liable for stormwater discharges, the Port may be subject to civil penalties. Perhaps more significantly, the Port would be required to develop infrastructure to prevent further CWA violations from stormwater runoff. The ruling, Puget Soundkeeper All. v. Total Terminals Int'l, LLC, No. C18-0540RSL, 2019 WL 1013458 (W.D. Wash. Mar. 4, 2019), is available here.