Lawsuit between RBCA and the City of Seward
Resurrection Bay Conservation Alliance (“RBCA”), along with Alaska Community
Action on Toxics, filed a lawsuit against the City of Seward, Alaska (“City”) in September of
2006. After discovering that the City owns and operates two facilities where boat repair
activities occur, RBCA provided the City with 60 days’ notice of its intent to file suit under the
Clean Water Act (“CWA”) for unpermitted storm water discharges from the facilities. When the
City failed to obtain the required permit within the 60 days, RBCA brought two claims against
the City for discharging storm water associated with industrial activities without a permit in
violation of the CWA at the two locations: the Seward Small Boat Harbor on the northwest shore
of Resurrection Bay and a boat repair facility at the Seward Marine Industrial Center (“SMIC”)
at Mile 7 Nash Road on the northeast shore of Resurrection Bay. RBCA was concerned that the
boat repair activities, including sandblasting, painting, and general boat maintenance activities
that result in the deposition of oil, gas, grease, and paint chips, were being carried to local creeks
and Resurrection Bay when it rains and when the snow melts and this adversely impacted water
quality and marine and fresh water organisms.
In its decision on summary judgment, the federal District Court for the District of Alaska
found that the Small Boat Harbor and boat repair area at SMIC are industrial facilities where
boat building and repair activities, such as welding, powerwashing, blasting, sanding, and
painting occur. The District Court determined that the City controlled and operated industrial
facilities at both locations, that discharge of storm water to waters of the United States occurred
from the sites, and that the City must obtain a CWA permit. The District Court also assessed a
nominal civil penalty of $1, but summarily denied attorneys’ fees and costs. The attorneys’ fees
issue is on appeal to the Ninth Circuit, and the City cross-appealed. Oral argument is scheduled
in Anchorage on August 6, 2009 on the issue of attorneys’ fees and the City’s motion to vacate
the judgment as to the Small Boat Harbor site.
The cases are:
Resurrection Bay Conservation Alliance, et al. v. City of Seward, U.S. District Court for
the District of Alaska Case No. 3:06-cv-224 RRB (filed Sept. 22, 2006).
Resurrection Bay Conservation Alliance, et al. v. City of Seward, U.S. Court of Appeals
for the Ninth Circuit, Case Nos. 08-35401, 08-35440 (filed May 5, 2008 and May 19, 2008).
