Jonathan Bilyk May 3, 2016, 5:56pm

EDITOR'S NOTE: This article was updated on May 13, 2016, to include reaction from the Natural Resources Defense Council to the decision referenced in this case.

A group of environmental action organizations appear to have more work ahead of them if they wish to persuade a federal judge that the region’s largest sewage treatment agency broke federal law and should be held responsible for what they have called unnatural levels of plant and algae growth in local rivers and streams, which the environmental groups claim is spurred by phosphorus in the treated water flowing from the agency’s sewage treatment plants.

Chicago Sanitary and Ship Canal
Chicago Sanitary and Ship Canal

On April 20, U.S. District Judge John J. Tharp Jr. rejected petitions for summary judgment from both the group of plaintiff environmental activist organizations, including the Natural Resources Defense Council, the Sierra Club and the Prairie Rivers Network, and the defendant Metropolitan Water Reclamation District. While the judge said the water district’s motion falls short of dowsing the assertions of the environmental groups, likewise, the NRDC and others still must keep paddling to prove their claims regarding the culpability of the water district for allegedly polluting the waterways.

“Though it is their burden as the summary judgment movant to do so, the plaintiffs do not provide a convincing answer to the question: What is unnatural growth in such an unnatural system?” Tharp wrote. “They do not offer data that show algal changes from a baseline drawn from the (Chicago Area Waterway System), or even from other systems that are remotely comparable to the highly engineered, nature defying waterways that constitute the CAWS and related waterways of the Upper Illinois River basin.

“Accordingly, a reasonable jury could conclude that the plaintiffs’ attempt to establish a natural baseline for assessing the conditions of the CAWS by reference to comparatively pristine natural waterways is akin to comparing apples to zebras,” Tharp said.

The decision comes as the latest step in a multi-jurisdictional legal fight being waged by the environmental groups to obtain an order forcing the Metropolitan Water Reclamation District to filter more phosphorus from the treated water, known as “effluent,” it discharges from its massive sewage treatment plants.

The Metropolitan Water Reclamation District covers 883 square miles, including the city of Chicago and 125 suburban communities. It operates seven sewage treatment plants, and maintains the regional Tunnel and Reservoir Plan, known commonly as the Deep Tunnel Project which provides flood protection to the region.

The environmental groups’ lawsuit centered on the contents of the effluent from the water district’s North Side, Stickney and Calumet water reclamation plants, which discharge into the so-called CAWS, including the North Shore Channel, the Chicago River, the Chicago Sanitary and Ship Canal, the Calumet-Sag Channel and the Little Calumet River. All of these streams and rivers flow into the Des Plaines River, which, in turn, helps form the Illinois River, and, ultimately, reaches the Gulf of Mexico via the Mississippi River.

The court documents note that more than 70 percent of the water in the CAWS comes from the wastewater treated by the MWRD’s three treatment plants at the heart of the legal action.

According to the environmental groups, the treated water emanating from the sewage plants contains too much phosphorus, fueling “unnatural” plant and algae growth, and, in so doing, violating the terms of the district’s permits for the plans under the National Pollution Discharge Elimination System and the federal Clean Water Act.

In March, the same environmental groups secured a victory over the district in a related action in state court, when a state appeals panel overturned a decision by the Illinois Pollution Control Board to uphold the Illinois Environmental Protection Agency’s award of state operating permits for the district’s three plants, even though those permits do not address phosphorus content in the plants’ outflow.

That case was returned to the Pollution Control Board for new proceedings.

The environmental groups had simultaneously pursued the action in federal court, which they filed in 2011.

However, Tharp said, for the environmental groups to prevail, they would need to better demonstrate the harm from the phosphorus, and better connect it to the district’s treatment plants.

The environmental groups argued the connection between the district’s effluent and the plant growth in the CAWS should settle the case – essentially, that because the district’s effluent contains relatively large amounts of phosphorus, and because plants consume phosphorus, therefore the district should be liable.

The district, however, argued the Chicago Area Waterway System has such conditions in it now that “reducing the manmade phosphorus component … would be unlikely to affect” plant and algae growth.

The judge sided largely with the district, saying he believed “a reasonable jury” wouldn’t necessarily automatically side with the environmental groups in this case.

“Although the plaintiffs persuasively argue that more phosphorus can produce more plant and algal growth as a general matter, they have not established that any identified condition is specifically attributable to the (water reclamation plants’) effluent,” the judge said.

To prevail, Tharp indicated the environmental groups will need to overcome the problem of defining precisely what a truly “natural” level of phosphorus in the CAWS should be.

“Considering that significant portions of the CAWS were constructed as a sewer to carry Chicagoland’s wastewater away from Lake Michigan, and that even the system’s ‘natural’ components have been re-engineered so fundamentally that they operate, literally, in a manner that is 180 degrees opposite of what nature devised originally, it is particularly uncertain what amount of algal growth in the CAWS could ever be considered ‘natural’—that is, growth that is not influenced by human intervention,” Tharp wrote.

Since the “permitted amount of phosphorus (in the waterways) is not zero,” the judge said, the environmental groups must somehow establish the amount of plant and algae growth that is not natural, and then demonstrate the district’s effluent caused it.

“It is not the court’s task to wade into these murky waters to assign a permissible level of phosphorus above which the district is liable for violating the unnatural-growth standard,” Tharp wrote. “The district is liable only for the growth that is unnatural, and so far the plaintiffs have not demonstrated how much, if any, plant and algal growth in the CAWS can identified as ‘unnatural’ nor how much man-made phosphorus causes it.”

The NRDC and other plaintiffs are represented in the action by attorneys with the firm of Baker & McKenzie, of Chicago, and attorney Albert Ettinger, of Chicago.

The Metropolitan Water Reclamation District is defended by in-house counsel and attorneys with the firm of Beveridge & Diamond, with offices in Chicago and Washington, D.C.

UPDATE: In a blog entry discussing the decision, NRDC litigator Anne Alexander acknowledged the case appeared ticketed for trial to sort through the process of identifying what the proper limits for phosphorus discharge should be under the district's permits.

"The Clean Water Act citizen suit provision, under which we sued the District, was designed to be simple and straightforward, based on the use of hard numbers in permits, which make it easy to show when there's been a violation," Alexander wrote in the post, published on the NRDC's website. "Here, in the absence of such hard numbers, the exercise necessarily involves more than just pointing to a permit limit number. 

"But our experts are up to the task, and we will do whatever's necessary to fix the problem the District so adamantly insists on denying."

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Organizations in this Story

Natural Resources Defense Council
40 W 20th St
New York, NY 10011

Prairie Rivers Network
# G 1902 Fox Drive
Champaign, IL 61820

Metropolitan Water Reclamation District of Greater Chicago
100 East Erie Street
Chicago, IL 60611

Beveridge & Diamond
1350 I Street Northwest
Washington, DC 20005

Baker & McKenzie LLP
300 E Randolph St
Chicago, IL 60601

City of Chicago
121 N LaSalle St
Chicago, IL 60602

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