Article from Ledger Dispatch.
May 23, 2023
In what is being labeled by county officials as a “huge victory” for Amador County, the California Department of Corrections and Rehabilitation (CDCR) on Thursday, May 18 entered into a consent decree to settle a Clean Water Act lawsuit brought by Amador County, agreeing to undertake $11 million in infrastructure improvements at Mule Creek State Prison to provide much-needed repairs to the prison’s wastewater collection system and two new bioswales to treat stormwater before it reaches Mule Creek.
“This settlement means the pollution by sewage from the prison will end,” said Chris Shutes, Executive Director of the California Sportfishing Protection Alliance (CSPA), which partnered with Amador County on the lawsuit. “This settlement will improve conditions for prison inmates and staff, for the City of Ione, for local landowners and for Amador County.”
Amador County initiated a Clean Water Act citizen suit against CDCR in January of 2021. The Clean Water Act prohibits the discharge of pollutants to surface waters, except as authorized by a permit. The county’s lawsuit alleged that the prison discharges bacteria, pathogens, heavy metals and other pollutants to Mule Creek in violation of the Clean Water Act permit covering the prison. Extensive monitoring and reporting activities undertaken by CDCR show that the prison’s wastewater collection system has structural deficiencies which allow untreated sewage to leak into the surrounding area, including into the storm drain system. The storm drain system drains into Mule Creek.
Under the terms of the consent decree, CDCR has seven years to repair all identified deficiencies in the prison’s wastewater collection system and construct bioswales to treat stormwater and non-stormwater flows that reach Mule Creek. During this time, CDCR will divert dry weather flows to the wastewater treatment plant instead of discharging them to Mule Creek, will continue to sample and analyze the prison’s stormwater discharges for the presence of pollutants, and will report those results publicly. CDCR also agreed to pay $820,000 to reimburse the county for the costs of bringing the lawsuit.
The county’s lawsuit was consolidated with a similar lawsuit filed by the CSPA around the same time. The consent decree settles both actions. The Department of Justice has 45 days to review the consent decree and provide comments. After that period of time, the consent decree is expected to be entered as the judgment of the court in both consolidated actions.
“Huge victory for the folks of Amador and our waterways,” City of Ione Councilmember Alison LaFayne said. “Thank you Amador County and the California Sportfishing Protection Alliance for joining forces and going after the big fish.”
In a statement from the CSPA on the settlement, CSPA Executive Director Chris Shutes said the facts in the case were brought to the attention of the Regional Water Quality Control Board in 2018, when they began receiving reports from local citizens describing brownish, steaming hot water discharging from the prison directly into Mule Creek.
“The Department of Corrections itself identified widespread leaks and capacity deficiencies in both sets of Mule Creek State Prison’s sewer lines,” Shutes said. “The pollution has affected prison grounds, the lands downhill from the prison, Mule Creek, Dry Creek, and in very high flows the Mokelumne and Cosumnes rivers and the Delta.
“CSPA thanks Amador County for its collaboration. CSPA has stood shoulder to shoulder with the county in the past, including the assurance of Sierra lake protections in Amador v. El Dorado in 1999. We strongly value our partnerships with the county on areas of mutual interest, including working together to make sure that CDCR abides by its commitments under the terms of this settlement.”
At the insistence of local activist Katherine Evatt, Richard McHenry, CSPA’s Director of Permits and Compliance, flagged the issues with Mule Creek State Prison for CSPA in 2020 and provided guidance as the case developed. Dr. Robert Emerick ably assisted CSPA as its technical expert witness. After obtaining a court order to inspect and take water samples at the maximum-security prison, CSPA and Amador County analyzed the samples and found high concentrations E. coli and fecal coliform, which CDCR had long attributed to geese, deer or other animals in its reporting to the Regional Water Quality Control Board. CSPA and the County also analyzed the samples for Pharmaceuticals and Personal Care Products (“PPCPs”) and found caffeine, acetaminophen and other pharmaceuticals in the prison’s storm water system – during dry weather.
Based on these findings, plaintiffs were prepared to prove at a trial next month that the prison’s sewage system was contaminating its storm water discharges through “exfiltration” and “infiltration” problems caused by broken or unmaintained pipe systems. The parties estimate that the consent decree will require approximately $10,000,000 in state funding to implement.
The case was one of the last major water quality actions initiated by CSPA’s late Executive Director Bill Jennings. CSPA was represented in this matter by Erica Maharg and Kenya Rothstein of the Aqua Terra Aeris Law Group, and William Carlon and Andrew Packard at the Law Offices of Andrew L. Packard. Best, Best and Krieger’s Christopher Pisano, Rebecca Andrews, Gene Tanaka and Shawn Hagerty represented Amador County.