BILL REQ. #:  H-0789.1 

Read first time 02/10/2005.   Referred to Committee on Economic Development, Agriculture & Trade.

     TO THE HONORABLE GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, AND TO THE PRESIDENT OF THE SENATE AND THE SPEAKER OF THE HOUSE OF REPRESENTATIVES, AND TO THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES, IN CONGRESS ASSEMBLED, AND TO THE ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:
     We, your Memorialists, the Senate and House of Representatives of the State of Washington, in legislative session assembled, respectfully represent and petition as follows:
     WHEREAS, The Clean Water Act, 33 U.S.C. Sec. 1251 et seq., is a federal law establishing a national goal of restoring and maintaining the chemical, physical, and biological integrity of the nation's waters; and
     WHEREAS, The federal Clean Water Act establishes numerous provisions designed to focus national, state, and local efforts on water pollution control, including: Effluent limitation requirements; state adoption of water quality standards; state water quality assessments and reporting requirements; enforcement requirements; and grant programs for research, water pollution control programs, and treatment facilities; and
     WHEREAS, The federal Clean Water Act establishes a national pollutant discharge elimination system of permitting for point source discharges of pollutants to navigable waters of the United States and includes provisions for nonpoint source management programs for the nation's waters; and
     WHEREAS, The programs and regulations established under the federal Clean Water Act impose numerous requirements on state and local governments, requiring the investment of human and other resources and the expenditure of substantial funds; and
     WHEREAS, Many small jurisdictions with limited financial resources are struggling to comply with federal Clean Water Act mandates while attempting to provide basic governmental services to their citizens; and
     WHEREAS, Actions to comply with federal Clean Water Act mandates, including development of discharge management programs and construction of treatment facilities, can take a significant amount of time and require a substantial amount of local resources; and
     WHEREAS, The citizen suit provision of the Clean Water Act, 33 U.S.C. Sec. 1365, allows any citizen to commence a civil action against any other person for violations of effluent standards, permit requirements, and certain other provisions of the federal Clean Water Act; and
     WHEREAS, Large advocacy organizations can file civil actions against small jurisdictions under the federal Clean Water Act's citizen suit provision, with standing to file an action based on their representation of individual organization members; and
     WHEREAS, According to standing doctrine developed in case law related to environmental actions such as those filed under the federal Clean Water Act's citizen suit provision, these organizations can assert standing by showing that individual members use an area affected by the defendant's challenged activity and the defendant's actions have lessened recreational or aesthetic enjoyment of the affected area; and
     WHEREAS, Organizations filing civil actions under the federal Clean Water Act's citizen suit provision and other environmental laws may have little or no real connection to the small jurisdictions against whom these actions are filed; and
     WHEREAS, The federal Clean Water Act's citizen suit provision provides for sixty days' notice of such suits but neither affords small jurisdictions an opportunity to remedy problems before suit nor recognizes good faith efforts by small jurisdictions to achieve compliance; and
     WHEREAS, The legal costs of defense and the financial liability for damages and awards of attorneys' fees to prevailing plaintiffs in these actions have the potential to cripple already struggling small jurisdictions in Washington State;
     NOW, THEREFORE, Your Memorialists respectfully pray that the Congress enact and the President sign amendments to the citizen suit provision of the federal Clean Water Act, 33 U.S.C. Sec. 1365, to protect small jurisdictions from significant legal and financial liabilities by: (1) Requiring plaintiff organizations that assert representational standing to demonstrate a real and substantial connection to the area affected by the defendant's challenged activity; (2) requiring plaintiff organizations to identify the members whose interests are the basis for the standing the organization asserts; and (3) recognizing good faith compliance efforts by small jurisdictions in such actions and provide small jurisdictions a meaningful opportunity to remedy compliance problems before being subjected to damages and attorney fee awards.
     BE IT RESOLVED, That copies of this Memorial be immediately transmitted to the Honorable George W. Bush, President of the United States, the Administrator of the United States Environmental Protection Agency, the President of the United States Senate, the Speaker of the House of Representatives, and each member of Congress from the State of Washington.