On September 20, 2017, we filed a 60-day Notice of Intent (NOI) to sue Daphne Utilities for several violations under the Clean Water Act. Learn more about this issue in our Frequently Asked Questions (FAQs) blog below.
Clean Water Act & Legal Information
What is a sanitary sewer overflow?
A sanitary sewer overflow (SSO) or sewer spill is when raw, untreated, or partially treated sewage is discharged from manholes, pump stations, or other areas before reaching the treatment plant. These spills pollute our waterways, impact our marine life (seafood), can make people very sick, and cause damage to homes and property.
What is the Clean Water Act (CWA)?
Passed in 1972, the CWA made it illegal to discharge any pollutant into waterways, unless a permit was obtained. The CWA sets standards for the health and quality of our waterways. These required permits give citizens the right to know what type and how much pollution is entering local waterways. Click here to learn more.
How do we have the authority to file a lawsuit?
The CWA allows any citizens or citizen groups who are adversely affected by an alleged polluter’s actions to sue. The CWA recognizes that agencies responsible for upholding the law often times don’t have the resources needed to ensure the law is enforced. The act recognizes that these suits will benefit the general public, not just the plaintiff. The CWA has a “citizen’s suit” provision because there are times when state and federal agencies may lack the will or ability to hold a polluter accountable (Section 505).
Who can be sued under the Clean Water Act?
Any person or entity who illegally pollutes waters of the United States.
What is a 60-day Notice of Intent (NOI)?
A 60-day NOI is a letter threatening to sue if necessary actions are not taken within 60 days to achieve compliance with the Clean Water Act, including its penalty provisions. The Clean Water Act requires Mobile Baykeeper to issue a 60-day NOI before filing a citizen suit, with copies to the applicable regulatory agencies. If an agreement between the parties to achieve compliance is not made before the expiration of the 60-day period, the case will move forward. The NOI also gives the state and federal agencies time to enforce the CWA requirements on the alleged polluter.
Case against Daphne Utilities
What permit did Daphne Utilities violate?
Daphne Utilities, like all wastewater treatment facilities, has a permit to discharge pollutants known as a National Pollution Discharge Elimination Permit (NPDES), better known as a water discharge permit. This permit puts specific requirements on how Daphne Utilities treats sewage and the amount of pollutants that can be discharged back into the Blakeley River. A sewer overflow is a violation of the NPDES, as is the failure to accurately report such violations.
How exactly did they violate the permit?
Daphne Utilities violated their permit by falsely reporting the amount of raw sewage entering waterways and failing to report the occurrence of sewer spills. They operate a wastewater treatment plant (WWTP) that has allowed raw sewage to directly enter Mobile Bay, D’Olive Creek, Joe’s Branch, Tiawassee Creek, Yancey Branch, and other waterways. Every spill and discharge is a violation of the Clean Water Act.
What was their most serious violation?
On August 11, 2017, more than one million gallons of raw sewage spilled from the treatment plant into D’Olive Creek. The spill was reported by the utility as “zero gallons” reaching waterways.
Where is D’Olive Creek?
D’Olive Creek is located on Baldwin County’s Eastern Shore in Daphne and Spanish Fort. Public access points include “Alligator Alley” Boardwalk and Bayfront Park in Daphne. The creek flows into Lake Forest Lake, D’Olive Bay, and Mobile Bay.
What do we hope to accomplish?
We want to see immediate public notification and accurate reporting following each sewer spill, more frequent testing conducted, and utilities investing in necessary infrastructure upgrades. In the case of Daphne, a serious “culture change” is in order. Ultimately, our goal is to eliminate future spills from occurring. This will protect the health of our community, our economy, and allow citizens to safely enjoy swimming, fishing, and boating in area waterways.
Does Mobile Baykeeper stand to personally benefit from this lawsuit?
No, our sole focus is stopping the pollution resulting from and threats to public health resulting from these unreported spills. There is no right to monetary damages for plaintiffs under the Clean Water Act because the purpose of filing a lawsuit is to benefit the general public, not just the plaintiff.
Our Work on Sewer and Previous Experience with Lawsuits
How does Mobile Baykeeper track sewage spills?
Spills are required to be reported to Alabama Department of Environmental Management (ADEM) by the different utilities. These reports must provide accurate data about the spill and be submitted within 24 hours from the time it is discovered. Mobile Baykeeper tracks these reports, downloads, and transcribes each report of a spill. Spill data is then uploaded into the Sewage Spill Explorer web tool, allowing citizens to see the amount, severity, and location of sewer spills in their neighborhood.
Has Mobile Baykeeper been involved in similar lawsuits in the past?
Yes, we have experience advocating for clean water through lawsuits over our 20-year history. Previous lawsuits include cases against the Mobile Area Water and Sewer System (MAWSS) in 1999, Water Works and Sewer Board in the City of Prichard in 2004, Alabama Department of Transportation (ALDOT) in 2007, Bayou La Batre Utilities Board in 2008, and most recently Plains All American Pipeline in 2014.
Where can I learn more about Mobile Baykeeper’s work on sewer?
To learn more information about our work on sewer, please visit mobilebaykeeper.org/sewer. For more information, contact Program Director Cade Kistler at firstname.lastname@example.org or call 251-433-4229.