Clean Water Act lawsuits raise issue of motive.

Byline: Jack Moran The Register-Guard

Officials in communities on California's north coast have known for years to brace themselves when Jack Silver takes an interest in their sewage treatment systems.

Silver, a Santa Rosa, Calif., environmental attorney who in 1996 founded the watchdog group River Watch, has sued about a dozen local governments in Northern California under a provision of the federal Clean Water Act that allows citizen lawsuits. Most of the cases have ended in out-of-court settlements requiring public agencies to improve sewer maintenance and to fund environmental studies.

In the process, Silver has collected more than $660,000 in attorney fees from local agencies since 2002, according to settlement agreements posted on River Watch's Web site. The settlements - and the magnitude of the attorney fees - have made Silver a controversial figure in the argument over whether such lawsuits constitute misuse of the federal law's citizen lawsuit provision.

Now Silver is showing an interest in Oregon. He's teamed with Eugene attorney Roy Haber to file a Clean Water Act lawsuit against the cities of Eugene and Springfield and the Metropolitan Wastewater Management Commission, which is overseen by the two cities and Lane County. The commission runs the metro area's sewage treatment plant, while the cities maintain the metro area's network of sanitary sewer lines.

Local officials have known for years that the treatment system needs upgrading, and they are in the midst of a $144 million expansion plan. But Silver's lawsuit says they need to do much more.

The complaint is strikingly similar to others filed by Silver's organization in California.

Filed in October in U.S. District Court in Eugene on behalf of a newly founded nonprofit calling itself Oregon Riverwatch, the lawsuit claims that the local agencies have repeatedly violated the Clean Water Act by overseeing a wastewater collection and treatment system that allows raw sewage to be discharged illegally into area waterways.

Attorneys for the area governments deny the allegations.

"We are still assessing the allegations and intend to contest the charges vigorously," said Dave Jewett, a Springfield attorney who represents the wastewater commission.

But Silver says he's confident that sooner or later, officials in Eugene and Springfield will concede that the lawsuit has merit, and settle rather than endure a lengthy, expensive trial.

"I've been through this before lots of times," Silver said. "In the end, they're going to fold and fix the things we want them to fix."

Lawsuit's genesis

How Silver decided to file the complaint is unclear. He says he was approached by local environmentalists while attending the annual Public Interest Environmental Law Conference at the University of Oregon.

`Your area is pretty full of activists, and I talked to some people who said, `We like what your group has been doing, and we'd like to do something like that here,' ' Silver said. "They wanted to do something about the declining state of the watershed in your area."

Oregon Riverwatch President John Bergland tells a different story.

Bergland, a 30-year Eugene resident and local Subaru salesman who is friends with Haber, the Eugene attorney working with Silver on the case, said the lawyers initiated the lawsuit.

"Roy and Jack had the idea of founding a group in Oregon that would do the same kind of work here that River Watch does in California - be a watchdog over the waters," Bergland said.

Haber referred all questions to Silver.

Oregon Riverwatch was loosely formed a few months ago, and incorporated as a nonprofit in December. Bergland wouldn't say how many people belong to the group, which has no other plans for environmental activism.

Still, Bergland says the small group hopes to grow. "We are interested in a clean environment," he said. "We're not just out to file lawsuits. That's just a tool to get at the ultimate goal that people can go play in the river and not worry about it."

He disagrees with the notion that Haber and Silver are driving the lawsuit process.

"These guys can't do anything unless we say it's OK," Bergland said. "The board is conscientious, and not a rubber stamp."

Overflows cited

The lawsuit alleges that the wastewater commission routinely violates its wastewater discharge permit in a variety of ways. The permit is issued by the state Department of Environmental Quality and requires compliance with the Clean Water Act.

Alleged violations include six or more instances of manholes overflowing with sewage when underground lines become blocked or system pumps fail. Wastewater officials file written reports on the incidents to DEQ officials, who evaluate whether an overflow is beyond management's control, said John Ruscigno, water quality manager for DEQ's western region.

The agency's discharge permit prohibits most overflows. But Ruscigno said episodes such as the manhole overflows cited in the Oregon Riverwatch lawsuit are fairly common in sewage treatment systems statewide.

"We're not going to fine someone unless something jumps out in an area of negligence," added Ruscigno, saying he can't recall an instance where the DEQ reprimanded the wastewater commission for an illegal discharge.

The wastewater commission "has one of the best designed and operated facilities in the state," he said.

Still, Ruscigno admits that the DEQ's heavy workload and low staffing result in somewhat lax enforcement of permits. "We are short resources, so we can't always provide the oversight we'd like to," he said.

The Riverwatch lawsuit also claims that the wastewater commission violates its permit by allowing raw sewage to seep into the earth from underground pipes, and by failing to report some overflows. The lawsuit doesn't cite specific locations or instances. The commission says it can't respond unless Riverwatch offers specifics.

The lawsuit wants the commission to pay fines to the government of up to $32,500 a day, fix the problems and pay Oregon Riverwatch's attorney fees.

Citizens have standing

The failure of a regulatory agency - such as the DEQ in Oregon or regional water boards in California - to strictly enforce permits leaves an opening for citizens to step in and file a lawsuit.

Officials in California are quick to say that the law's citizen-enforcement provision has helped the environment.

But they question whether Silver uses the law to gouge local governments that already are working to fix their sewage problems.

"I wouldn't say Jack's lawsuits are frivolous," said Roberta Larson, an attorney who is director of legal and regulatory affairs for the California Association of Sanitation Agencies. "They are legitimately brought under the citizens' provision of the Clean Water Act. I'm just not sure what they're accomplishing, as far as improving things. A lot of people believe these lawsuits are diverting money from solving problems to attorney fees and settlements."

Several representatives of local governments in Northern California that had battled Silver's group traveled to Washington, D.C., in 2004 to testify before a House subcommittee, asking that lawmakers consider changing the law to limit attorney fees, require courts to consider actions that local officials already are taking to improve their facilities, and give regulatory agencies more time to investigate alleged violations. Congress isn't actively considering making changes, though.

"In Congress, it's viewed as a California problem," Larson said. `But now (with the filing of the Oregon lawsuit), maybe it won't be seen that way anymore."

Is paycheck a motive?

Silver said the idea that he sues local governments primarily with a paycheck in mind is ridiculous.

"The money thing is such a ruse," he said. `I guarantee that any time we litigate a case, we make less money than the (public agency's) attorneys.'

River Watch settlements in California have varied. The city of Covelo, in Mendocino County, increased oversight of its sewage system and paid nothing in attorney fees when it settled a Silver-led case. But Silver has collected $150,000 in fees from a case involving the Sonoma County Water Agency, and $175,000 from a dispute with Santa Rosa city officials.

As for the Lane County case, Silver said he has tried to meet with local officials to discuss claims in the lawsuit. That request has fallen on deaf ears, he said.

"If they wanted to limit the attorney fees, they'd sit down with us," he said. Law firms that work for government agencies view the lawsuits as a chance to make money, he added. "I see this as a bunch of lawyers who have a cash cow, and they're going to milk that cash cow for all it's worth," Silver said.

Jewett, the wastewater commission attorney, responds that in August, he wrote a letter inviting Silver and Haber to discuss the concerns of Oregon Riverwatch, after the two attorneys sent an initial claim notice to local agencies. Jewett said he received no response, and didn't hear from the group again until it filed its lawsuit in October.

Silver said the commission's letter was a "typical" response that didn't show a sincere desire to fix the problems.

Local agencies have spent heavily on their own lawyers to respond to the lawsuit. The wastewater commission has spent more than $85,000 on lawyers. Springfield has paid its attorneys through December about $4,700, city spokesman Niel Laudati said. Jens Schmidt, an attorney for the city of Eugene, declined to release the amount Eugene has spent.

Some support Silver

Eugene environmental attorney Charlie Tebbutt is working with Silver on a case involving the Sonoma County, Calif., city of Healdsburg, which has appealed a federal court's ruling that city officials discharged partially treated sewage into a gravel pit next to the Russian River without a permit, which is what Silver's group had claimed.

Tebbutt, of the nonprofit Western Environmental Law Center in Eugene, says Silver "did a fantastic job" with the case before asking him to step in and argue the appeal.

Tebbutt wholeheartedly supports citizen environmental lawsuits. The Clean Water Act doesn't limit attorney fees because it seeks to ensure that citizens have access to adequate legal representation when challenging a public agency.

Tebbutt isn't surprised some government officials criticize Silver. "When municipal governments get sued for violating the Clean Water Act, they often look to get back at people who bring the cases," Tebbutt said.

But several Northern California environmental groups have criticized Silver for operating a business that hurts their ability to work constructively with governments.

Brenda Adelman, a former River Watch board member who now heads the Russian River Watershed Protection Committee in Sonoma County, left Silver's group in 2002 because she believed that he was far too concerned with the fees he could collect from local agencies. Still, she says Silver's work has led to positive environmental change in several cities along California's rugged north coast.

"It's a mixed bag for me," Adelman said. "Silver pushes the issues and forces communities to look at what they're doing. But I dropped off the board because I wasn't comfortable with the way he was going about the settlement part.

"Some of the things he's done have had excellent outcomes as far as the environment is concerned," she said. "But I've seen him get inappropriate settlements that have negatively impacted communities."