B&D Secures Major Clean Water Act Ruling in U.S. Court of Appeals for Seventh Circuit
On July 9, 2015, Beveridge & Diamond secured a unanimous published opinion from the U.S. Court of Appeals for the Seventh Circuit rejecting a citizen suit challenge under the Clean Water Act. B&D represented the Metropolitan Water Reclamation District of Greater Chicago (MWRDGC) in a case brought by several environmental groups challenging the consent decree that the District had negotiated with the U.S. that provides for multibillion-dollar investments to improve wastewater collection and treatment in the Chicago area. The opinion establishes important precedent limiting the ability of private litigants to challenge settlements reached with federal and state enforcement authorities on complex environmental issues.
The consent decree upheld by the Seventh Circuit will improve stormwater control and wastewater management throughout metropolitan Chicago during storm events. It features green infrastructure projects and a large tunnel and reservoir system (TARP), construction of which began in 1975. The $3.7 billion Clean Water project is memorialized in a consent decree between the U.S. Environmental Protection Agency, the Illinois Environmental Protection Agency, and the District that B&D secured on behalf of the District in 2014.
B&D’s multi-office team that represented MWRDGC includes Principals Ben Wilson (Washington, DC), who argued before the Seventh Circuit and the U.S. District Court for the Northern District of Illinois; Gary Smith (San Francisco), the primary author of the brief; and Richard Davis (Washington, DC), who negotiated the consent decree over seven years. Others engaged for the firm included B&D Principals Sarah Albert (Baltimore) and Mark Turco (Washington, DC) as well as Geoff Goode, Brandon Harrell, and Denise Paul.
In Judge Easterbrook’s opinion affirming the ruling and closing out the citizens’ claims, he wrote, “Yogi Berra observed that it is hard to make predictions, especially about the future. State and federal agencies are entitled to rely more on experience and less on predictions. The consent decree that the district court has approved is reasonable in light of the current infrastructure, the costs of doing things differently (no one proposes to build a new sewer system or redo the Deep Tunnel project), and the limits of knowledge about what will happen when the system is completed. The decree is the outcome of diligent prosecution and therefore binds would‑be private litigants such as the Alliance.”
“B&D congratulates the District on this successful and final result. We are proud of our partnership with MWRDGC since 2007, and we look forward to seeing the completion of the TARP project which will be of great benefit to the people of Greater Chicago,” said Ben, B&D’s Managing Principal.
The case is United States v. MWRDGC, ___ F.3d ___, 2015 U.S. App. LEXIS 11838 (7th Cir. 2015). Click here for the full opinion.
B&D represents a number of municipal and regional water systems nationwide on stormwater and wastewater matters, as well as other Clean Water Act enforcement and permitting issues, including DC Water, the Sewerage & Water Board of New Orleans, and the City of Los Angeles. For example, the firm assisted the San Antonio Water System in finalizing a consent decree involving its $1 billion sewer system project. It also helped fashion a unique 6-community regional solution for combined sewer overflows for the Capital District of New York State (the Albany region).