(Above) Trump International Hotel & Tower from east of the DuSable Bridge on July 31, 2019.

By Steven Dahlman

29-Dec-23 – A Circuit Court judge has denied all seven affirmative defenses that Trump International Hotel & Tower says mitigate the legal consequences of its actions, in an environmental lawsuit now in its sixth year.

The lawsuit, filed on August 13, 2018, by the State of Illinois, Friends of the Chicago River, and Sierra Club, is over how much water Trump Tower withdraws from and discharges back into the Chicago River.

The suit claims the official owner of the 98-story building, 401 North Wabash Venture LLC, for more than ten years, has not accurately computed and reported to the Illinois Environmental Protection Agency (IEPA) the rate at which its cooling water intake system withdraws water from the Chicago River. The water is used for the building’s heating, ventilation, and air conditioning system.

The plaintiffs say Trump Tower’s calculations are off by 44 percent, underestimating its impact on the Chicago River.

An amended complaint, filed on September 28, 2023, alleges violations by Trump Tower of the federal Clean Water Act.

“The saga of Trump International’s violations of the Clean Water Act has gone on for far too long, and we look forward to working with the [Illinois] Attorney General to ensure that justice is finally served and the Chicago River is fully protected,” said Margaret Frisbie (left), Executive Director of Friends of the Chicago River.

“We have worked for decades to transform the health of the river, and want to protect those investments and the people, fish, and other wildlife which benefit from them. We must support aquatic species, not destroy them,” said Frisbie.

Trump Tower is required to report, every month, its average daily volume of heated water it discharges into the Chicago River. An expert witness for Friends of the Chicago River and Sierra Club, according to the lawsuit, said there was a “significant discrepancy” between flow data recorded by the building’s automated system and data Trump Tower reported to the IEPA.

Trump Tower has denied allegations that it discharges heated water in excess of permitted limits, or that it has submitted incorrect intake and discharge data to the Illinois EPA, or that it calculates flow data incorrectly. The tower says the temperature of water discharged into the Chicago River has never exceeded the limit established by the IEPA. Though attorneys for Trump Tower say incorrect data was submitted to the IEPA in the initial National Pollutant Discharge Elimination System (NPDES) permit application, the tower applied in 2012 to modify the terms of the permit to correct the data. (Right) Kayaks on the Chicago River near Trump Tower on August 11, 2018.

The lawsuit asks the Chancery Court to find Trump Tower in violation of the Clean Water Act and other regulations and order 401 North Wabash Venture LLC to pay a civil penalty plus $10,000 for each day of violation.

Affirmative defenses question whether Trump intake system is ‘new’

The affirmative defenses, denied by Circuit Judge Thaddeus Wilson on November 15, 2023, were filed on October 26, 2023, along with Trump Tower’s answer to the second amended complaint.

The defenses question whether Trump Tower’s water intake system was “new” or “existing,” which would affect how requirements of the NPDES permit program are interpreted. Trump Tower says it inherited the intake system from the Chicago Sun-Times Building, previously located on the site, though Trump Tower says it did install additional water intake structures.

Trump Tower also says Friends of the Chicago River and Sierra Club – both environmental organizations – agreeing to interim orders that did not seek to control discharge of heated water is evidence the tower was not harming or threatening to harm the Chicago River. (Left) Circuit Judge Thaddeus Wilson

Trump Tower has filed a motion to dismiss two of the five counts of the amended complaint. The counts allege the tower discharged heated water into the Chicago River without the proper environmental permit and did not comply with regulations affecting its intake structures.

The motion to dismiss was filed on December 20, 2023, and will be argued in court on March 19, 2024.