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Two attorneys who challenged the Environmental Protection Agency to impose pollution standards for New York State reservoirs should be awarded fees under the Clean Water Act, a Southern District judge with the U.S. District Court for the Southern District of New York has ruled. Finding that attorneys with the National Resources Defense Council, Inc., prevailed on “a significant issue in litigation” that affected the bulk of New York City’s water supply, Senior Judge Peter K. Leisure awarded $221,732 in fees and expenses to NRDC’s Mark A. Izeman and Eric A. Goldstein. The award in National Resources Defense Council Inc. v. Fox, 94 Civ. 8424, includes $36,682 for the fee application submitted by Carter, Ledyard & Milburn. The environmental group sued the EPA in 1994, charging that the EPA was shirking its legal obligation under the Clean Water Act to intervene and identify threatened water bodies in New York and establish pollution limits. The complaint also charged the agency with violations of the Administrative Procedure Act (APA) for the manner in which the EPA approved New York State’s 1992 revisions of water quality standards. The complaint was later amended to charge that the EPA failed to disapprove New York’s constructive submission of pollution limits called TMDLs (Total Maximum Daily Loads). It also charged that the agency should have set its own TMDLs after the state failed to act — a claim also brought under the APA. When the EPA finally approved TMDLs for eight of 18 reservoirs involved in the litigation, and treated the remaining submissions by New York as merely “informational,” the NRDC challenged the approvals and also challenged the “informational” designation. Some claims were dismissed as moot because of the state’s progress in formulating minimum pollution standards. On others, the EPA won motions for summary judgment. And last year, Judge Leisure dismissed all the remaining claims against the agency save one, the treatment of the 10 remaining TMDLs as informational. On that claim, Leisure ordered the EPA to take action on submitted TDMLs by New York State concerning the 10 reservoirs, which included five of the six largest reservoirs west of the Hudson River, which supply 90 percent of New York City’s daily water. The fee application was based on a Clean Water Act provision that allows a judge to award fees for successful “citizen supervision,” cases in which plaintiffs suing under the act achieve “significant” results, 33 U.S.C. Section 1365(d). “Plaintiffs brought this suit to protect New York City’s ‘drinking water supply and the health of the approximately nine million people who depend on it,’ ” Leisure said. “ By prevailing on this significant issue, NRDC achieved some of the benefit it sought when bringing the suit, and is therefore the prevailing party for attorneys’ fees and costs purposes.” DISMISSED CLAIMS But Leisure disagreed with the plaintiffs’ fee application for some of the dismissed claims, those based on the EPA’s initial failure to intervene and identify threatened water bodies and establish pollution limits. The NRDC said fees should be awarded because even though those claims were dismissed, they served as the “catalyst” that forced the EPA to act. In their fee application, they argued that “two months after the plaintiffs served their 60-day notice letter, New York State issued for public comment a draft list of over 800 water bodies.” And two months after the complaint was filed, they said, New York submitted a final TMDL list to the EPA that included all New York City Reservoirs. Leisure said the attorneys’ reliance on catalyst theory was “misplaced because first, the EPA did not alter its conduct with regards to any of these claims and second, because NRDC cannot establish causation.” New York State was not a defendant in the case, he said, and fees cannot be recovered from the EPA “based upon actions taken by the State of New York.” And New York State was already in the process of identifying threatened water bodies and setting pollution limits when the action was filed, Leisure said. Izeman said he was pleased with the judge’s decision. “This illustrates the underlying purpose of citizen supervision under the Clean Water Act,” said Izeman, one of seven lawyers with the NRDC’s New York office. “It recognizes the significant environmental progress accomplished through the bringing of this case — we now have pollution limits for the reservoirs.” Stephen L. Kass and Jean M. McCarroll of Carter, Ledyard & Milburn represented the NRDC. Assistant U.S. Attorney Andrew W. Schilling represented the government.

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