Small town, big Clean Water Act problems

The stench and unbearable sight of the solid waste that occasionally flowed through Smuther's Ravine on the Edwards Family Farm in the tiny Sierra foothill town of Colfax ruined the farm's lettuce crop and very nearly financially ruined the city celebrating its centennial this year.

The cash-strapped burg of 1,500 people averted the worst Thursday when a scheduled hearing before a federal judge sympathetic to the farmer's plight was canceled. Instead, settlement talks restarted in court between Colfax and the farmers, Allen and Nancy Edwards.

Attorneys said it will be weeks before an agreement is reached to settle claims the city violated the Clean Water Act numerous times by allowing untreated waste to leave its sewage plant upstream of the Edwards farm. Talks could still collapse.

Colfax is only the latest polluter to run afoul of the historic Clean Water Act, which was passed in 1972 and empowered regular people like the Edwards to file "citizens lawsuits" when it appeared government regulators were ignoring problems.

Polluters are required to pay the attorneys fees of the prevailing party, putting cities, large industrial companies and even Amish farmers in financial jeopardy. Critics, including Damien Schiff, an attorney with the politically conservative Pacific Legal Foundation in Sacramento, say that provision alone generates more lawsuits than "would otherwise be brought."

Schiff said that successful lawsuit have been filed for violations that regulators deemed too trivial to pursue.

"There are definitely abuses," Schiff said.

Colfax City Manager Bruce Krantz is even more blunt, describing the attorneys arrayed against his town as "ambulance chasers."

Allen Edwards says he sued Colfax only as a last resort. He said years of fruitless negotiating to fix the city's outdated sewage plant prompted him to hire San Francisco's Lawyers for Clean Water Inc. to file a lawsuit in 2007. The two sides settled the lawsuit in 2008 with the city agreeing to pay the Edwards $130,000 and additional $320,000 in attorney fees and expenses.

But the Edwards were back in court early this year accusing Colfax of more than 4,000 violations of the settlement agreement and Clean Water Act. The city admits to a few violations, but has until now argued that the Edwards are demanding too much.

Krantz said most of the allegations target the city's failure to properly keep the Edwards updated on the sewage plants upgrade.

With an annual operating budget of $1 million, the city said it was prepared to file for bankruptcy if the judge sided with the Edwards demands for a $2 million fine and hundreds of thousands of dollars more in attorney fees. In the meantime, Krantz said Colfax was left with little choice but to fight the allegations. He posted a letter on the city's Web site complaining to residents about the Edwards' lawyers' demand for $186,000 in new attorneys fees.

In particular, Krantz was upset that the lawyers were billing San Francisco rates of $550 an hour instead of lower Sacramento rates of about $300 hour. He complained that Colfax residents' sewer fees have tripled in recent years to more than $100 a month in part because of the lawsuit.

"It's a game," Krantz said before the scheduled hearing Thursday. "Because their demands are so high, we are forced to defend ourselves. We can't just write a check for $2 million."

For his part Allen Edwards said that all he wants is a creek devoid of untreated waste. He's convinced the sewage plant can be made safe. He defends the hiring of the San Francisco firm because he said very few lawyers operate in the specialized field of Clean Water Act litigation.

"Instead, they have built up huge legal fees fighting instead of trying to fix the problems," he said. "If the city honors its settlement, we can have our lives back."

The Edwards retired to his family's 520-acre Colfax property in 1997 after building a house along the creek. Allen Edwards said a city engineer assured him that sewer plant upstream dumped only treated water into the creek. But Allen Edwards soon discovered with his nose and eyes that claim was far from true.

He said he lost a burgeoning lettuce business because new regulations arising from the California e. coli spinach crisis prohibits growing crops near polluted water. He grows trees for timber on most of the rest of the property.

Allen Edwards said he wished he didn't have to sue, but had no choice because of regulatory inaction.

That's exactly why the Clean Water Act was enacted, its supporters claims, because state and local regulators fail to hold polluters accountable.

J. Scott Sexton, an attorney for three coal companies in Virginia, settled a Clean Water Act lawsuit for $75 million last month that accused several other companies of illegally dumping waste into several mines. Sexton said the lawsuit was necessary because regulators refuse to hold the polluters responsible.

The settlement, he said, "likely signals a new era for enforcement of Clean Water Act standards within the coal industry."

Meanwhile, environment groups recently filed the largest Clean Water Act lawsuit in history when they sued BP for $19 billion for fouling the Gulf of Mexico.

By PAUL ELIAS Associated Press Writer

Source: San Jose Mercury News