A coalition of citizen groups and the Utah Department of Transportation have come to terms over alleged violations of the Clean Water Act during the widening of U-189 through Provo Canyon.
But one term that calls for UDOT to pay $126,000 to the Nature Conservancy and $14,000 to the U.S. Treasury hit a roadblock Wednesday in U.S. District Court.Senior Judge Bruce Jenkins refused to sign off on the financial portions of the settlement consent decree until he can be convinced that a judge has the authority to order a party to a lawsuit to make a settlement or penalty payment to someone who is not a party.
In the Provo Canyon case, neither the federal government nor the Nature Conservancy are parties to the litigation. The lawsuit was filed in June by the Provo Canyon Coalition and the American Canoe Association under the Federal Water Pollution Control Act, which allows citizens to seek enforcement of the Clean Water Act.
They accused UDOT and contractor Obayashi Corp. of "numerous and repeated" violations of a storm water discharge permit and U.S. Army Corps of Engineer's 404 (wetlands) permit. According to the citizen groups, sediment poured into the Provo River during the construction of a new four-lane highway between Upper Falls and Wildwood in Provo Canyon.
UDOT admitted no wrongdoing but agreed to comply with the permits, restore the disturbed waterways and pay a sum equivalent to the usual penalty - $140,000 - with most of it going to the Nature Conservancy for remediation work on the river. Under federal law, citizen enforcers of the Clean Water Act cannot themselves receive settlement payments.
David Bookbinder, attorney for the American Canoe Association, told Jenkins that negotiations are continuing with Obayashi Corp. and that a settlement is expected soon.
While accepting the general terms of the consent decree, Jenkins expressed doubts about his authority to ratify a penalty payment to parties not involved in the litigation. Jenkins also wondered whether the $14,000 payment to the treasury would bind the federal government to the terms of a consent decree to which it's not a party.
Michael Wall, a Department of Justice attorney who participated in Wednesday's hearing by telephone from Washington, D.C., estimated there are 50 citizen enforcement actions filed each year. And until Wednesday, no federal judge had questioned the third-party payments in consent decrees.
Both Bookbinder and Wall declined to label the payments penalties without further research. According to Wall, if the $126,000 payment is a penalty, it must go the government.
However, Thomas Mitchell, UDOT's attorney, said the state negotiated the financial terms of the consent decree around federal penalty provisions. "In our mind, this is clearly a civil penalty to address past violations," he said.
Nevertheless, Mitchell said the state doesn't object to the Nature Conservancy receiving the money through an agreement between parties or other legal means.
Jenkins asked the lawyers to submit further legal arguments on third-party payments in settlement of Clean Water Act citizen enforcement actions.