In August 2016, Judge Sharp of the US District Court in Nashville approved the settlement of the federal Clean Water Act citizen suit brought by Harpeth Conservancy against the City of Franklin, TN in August 2014. The court-enforceable settlement was designed to bring Franklin into compliance with the terms of the state permit for the city’s sewage treatment plant. Franklin’s sewer plant is the largest single source of permitted discharge of pollutants into the State Scenic Harpeth River that flows through Nashville and through one of the fastest growing regions of our state and country.
Why Harpeth Conservancy Filed the Clean Water Act Lawsuit
Tennessee Code § 69-3-102(a) states that “the waters of Tennessee are the property of the state and are held in public trust for the use of the people of the state” and that Tennesseans “have a right to unpolluted waters.”
The Harpeth River is listed by the State of Tennessee as an impaired (polluted) waterway because it fails to meet water quality standards for Fish and Aquatic Life during periods of low summer flow. Sewer plant discharge is also high in Nitrogen and Phosphorus, which fuel algal blooms that cause oxygen levels in the river to drop to low levels daily. Low dissolved oxygen levels stress fish and wildlife and can create conditions harmful to public health and livestock. For the section of the Harpeth that is downstream Franklin’s sewage treatment plant discharge to the confluence of the West Harpeth, the 303(d) list specifies that “municipal point source discharges” are the “pollution source” for phosphorus and low dissolved oxygen as well as stormwater runoff which is also identified as a source for sediment/siltation. Conditions like these that have contributed to toxic situations around the country – and internationally.
In 2015, American Rivers named the Harpeth River among America’s Most Endangered Rivers ® highlighting the threat sewage pollution and excessive water withdrawals pose to clean water and public health. The river’s water quality is impaired from unacceptably high levels of pollutants that feed harmful algae growth that can cause dangerous conditions for wildlife and public health according to the TN Department of Environment and Conservation.
Harpeth Conservancy filed suit in 2014 because Franklin was not complying with several permit provisions, among other reporting and discharge violations detailed in Harpeth Conservancy's 60-day notice, including those requiring Franklin to:
Harpeth Conservancy and its partner, the Southern Environmental Law Center (SELC), provided a formal settlement offer at Franklin’s request in early May 2014 that was similar to the terms agreed upon promptly by two smaller sewer facilities. That settlement offer was provided with the statement that it was openly subject to negotiation. The offer included no monetary penalties or attorneys’ fees to be assessed for the numerous past permit violations. The City never responded. Franklin’s lack of response gave Harpeth Conservancy no choice other than to file the complaint, putting the facts before an impartial judge in order to resolve differences.
Franklin then used Harpeth Conservancy's settlement offer -- which the City had requested -- as the basis to file its counter-suit against Harpeth Conservancy for alleged “abuse of process.” The Tennessean, as of October 2015 reported that Franklin had spent in excess of $300,000 through June 2015 on an out-of-town law firm on its counterclaim for abuse of process. Federal Judge Sharp dismissed Franklin’s counter-claim in November 2015, in a ruling from the bench.
In his March 3, 2016 ruling the judge allowed litigation on the bulk of the Harpeth Conservancy allegations to proceed while at the same time exhorting the parties to settle “before more taxpayer time and money is spent.”
The Southern Environmental Law Center's Tennessee office represented Harpeth Conservancy throughout these Clean Water Act citizen suit cases. In addition, SELC’s work in winning the dismissal of Franklin’s counter lawsuit against Harpeth Conservancy, which prolonged the litigation, importantly validated citizen’s rights to be involved in government decision-making.
Terms of the Settlement
The major points of the federal court-enforceable settlement included the following requirements for Franklin to do more to protect public health and improve the river’s water quality (to review the actual settlement document, please click here):
1) Study and monitor the river’s water quality, including fulfilling obligations that were in Franklin’s permit since 2010.
2) Participate along with Harpeth Conservancy and other agencies in the formulation of a new pollution reduction plan (called a “Total Maximum Daily Load” or “TMDL”) led by TDEC for the entire river. This TMDL plan will “fairly determine [Franklin’s pollution load allocation] in the context of the entire watershed.”
3) Fund up to $150,000 to conduct studies in support of the TMDL pollution reduction plan.
4) Conduct an “optimization study” for the current sewage treatment plant focused on reducing phosphorus and nitrogen inputs to the river to reduce the risk of harmful algal blooms. The City also agreed to prioritize the installation of portions of the new sewage treatment facility up front to have the ability to remove phosphorus to low levels.
5) Spend $10 million over five (5) years as a part of Franklin’s planned capital investment planning efforts to prioritize the upgrading of existing, aging sewer collection infrastructure. Harpeth Conservancy has input to this process. Franklin also agreed to use emerging technologies to identify and prioritize improvements in the sewer collection system.
6) Develop a sewer overflow response plan, similar to those already implemented in many other Tennessee cities. This plan is designed to reduce public health risks from exposure to raw sewage and increase public transparency regarding sewer overflow issues.
7) Franklin agreed that there would be no increases in sewer rates based on the lawsuit, counterclaims, or the settlement. In fact, both the Harpeth Conservancy and SELC followed through on their offers to Franklin prior to the filing of the lawsuit and agreed not to collect any attorney’s fees, either for the main action – the prosecution of the citizen suit under the federal Clean Water Act -- or for the defense against Franklin’s highly unusual counter-suit of abuse of process against Harpeth Conservancy. Harpeth Conservancy also agreed that it would not receive any money as a result of river study projects funded by Franklin.
8) The parties retained their respective rights to appeal permit and TMDL conditions if they are not satisfactory.
9) The settlement also provided for a method of resolving disputes without asking the Court to intervene, but the Court retained jurisdiction to enforce it, if necessary.
The settlement was embodied in a settlement agreement, a court-enforceable contract between Franklin and Harpeth Conservancy to take the agreed steps to monitor, protect and clean-up the Harpeth River. The settlement was subject to approval by the court and the US Department of Justice. These approvals were obtained.
The settlement began the next stage of what should be a broad community effort to restore the State Scenic Harpeth River. Franklin and Harpeth Conservancy agreed on locations for water quality monitoring in the river as required, and Franklin installed the equipment based on the state’s approval. Such information is essential to the new pollution reduction planning process for the entire Harpeth River that has been put in motion with the settlement. The TN Department of Environment and Conservation (TDEC) announced the start of this effort, called a “Total Maximum Daily Load” in 2015, with Harpeth Conservancy, Franklin, USEPA, and the US Geological Survey as the core partners.