CALIFORNIA SPORTFISHING No. 2:20-cv-02482 WBS AC PROTECTION ALLIANCE, Plaintiff, ORDER RE: DEFENDANTS’ MOTION v. FOR SUMMARY JUDGMENT KATHLEEN ALLISON, et al., Defendants.
COUNTY OF AMADOR, a public agency of the State of California, Plaintiff, v. KATHLEEN ALLISON, et al., Defendants. ----oo0oo---- Plaintiffs California Sportfishing Protection Alliance (“CSPA”) and County of Amador (“Amador”) brought this now- consolidated action against Kathleen Allison, in her official capacity as Secretary of the California Department of Corrections and Rehabilitation (“CDCR”), and Patrick Covello, in his official capacity as Warden of CDCR’s Mule Creek State Prison (collectively “defendants”), seeking declaratory and injunctive relief for alleged violations of the Clean Water Act, as amended by the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. (See CSPA Compl. (Docket No. 1); Amador First Amended Complaint (“Amador FAC”) (Docket No. 35); Order Consolidating Cases (Docket No. 18).) The court previously granted in part plaintiffs’ motion for partial summary judgment (Order Re: Motion for Partial Summ. J. (“Order Re: Pls.’ MSJ”) (Docket No. 60)) and denied defendants’ motion for partial summary judgment on the issue of Amador’s statutory standing (Docket No. 92). The court does not recite a full background of the case as it has done so in its prior order. (See Order Re: Pls.’ MSJ at 2-5.)1 Defendants now move for summary judgment on all claims. (Defs.’ Mot. for Summ. J. (“Mot.”) (Docket No. 95).) I. Judicial Notice A court may take judicial notice of facts “not subject to reasonable dispute” because they are either “(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R.
1 The court notes that its prior order (Docket No. 60) erroneously stated that the plaintiffs filed a single, joint complaint. There are two operative complaints: CSPA’s Complaint (Docket No. 1) and Amador’s First Amended Complaint (Docket No. 35.) Evid. 201. Defendants and Amador request that the court take judicial notice of various documents from the Central Valley Regional Water Quality Control Board, the State Water Resources Control Board, and the U.S. Environmental Protection Agency. (See Docket Nos. 95-6, 97-3.) The court will take judicial notice of these materials. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010) (a court may take judicial notice of “information [that] was made publicly available by government entities” where “neither party disputes the authenticity . . . or the accuracy of the information”); Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds, Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 (1991) (“[A] court may take judicial notice of ‘records and reports of administrative bodies.’”) (citations omitted). II. Legal Standard Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party may move for summary judgment either for one or more claims or defenses, or for portions thereof. Id. Where a court grants summary judgment only as to a portion of a claim or defense, it “may enter an order stating any material fact . . . that is not genuinely in dispute and treating the fact as established in the case.” Id. at 56(g). A material fact is one “that might affect the outcome of the suit under the governing law,” and a genuine issue is one that could permit a reasonable trier of fact to enter a verdict in the non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact and may satisfy this burden by presenting evidence that negates an essential element of the non-moving party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Alternatively, the movant may demonstrate that the non-moving party cannot provide evidence to support an essential element upon which it will bear the burden of proof at trial. Id. The burden then shifts to the non-moving party to set forth specific facts to show that there is a genuine issue for trial. See id. at 324. Any inferences drawn from the underlying facts must, however, be viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). III. Discussion A. Unpermitted Discharges Both plaintiffs’ first claims allege unpermitted discharges to Mule Creek. According to defendants’ motion, these claims “contend that Defendants have violated the Clean Water Act by operating the LAAs [land application areas]” because “the spraying of treated wastewater to the land surface is the functional equivalent of a discharge to water of the United States . . . .”2 (Mot. at 17.) However, defendants 2 Where the addition of pollutants to waters of the United States via a nonpoint source is the “functional equivalent of a direct discharge from the point source,” the discharger must obtain a permit pursuant to the Clean Water Act. County of Maui mischaracterize both plaintiffs’ claims. CSPA’s first claim applies only to the land application areas but does not rely on a theory of functional equivalence. (See CSPA Compl. ¶¶ 80-93.) Amador’s first claim relies on the functional equivalence theory but is not limited to the land application areas. (See Amador FAC ¶¶ 80-87.) Defendants’ motion addresses only the functional equivalence theory, upon which CSPA does not rely. (See Mot. at 17-18.) Defendants’ reply asserts in a footnote that “other than supposition from the Regional Water Board’s enforcement staff, CSPA has not produced any evidence (i.e., sampling data) to support [its] unfounded claim” that defendants’ operation of the land application areas resulted in a discharge to Mule Creek. (Defs.’ Reply (Docket No. 100) at 1 n.2.) Because defendants provide neither citations nor further discussion to support this argument, defendants have not provided sufficient basis on which to grant summary judgment. Accordingly, the court will deny summary judgment on CSPA’s first claim. Amador indicates that it “will no longer pursue” its first claim as to the land application areas. (Amador Opp’n at 8.) The court will therefore grant defendants’ motion for summary judgment on Amador’s first claim, only to the extent it alleges violations resulting from operation of the land application areas. B. Violations of Small MS4 Permit Plaintiffs’ second claims allege multiple violations of
v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1468 (2020). the Small MS4 Permit.3 Both plaintiffs allege violations of Provisions B.1, B.2, and D. CSPA additionally alleges violation of Provision B.3, and Amador alleges violation of Provision C.1. (See CSPA Compl. ¶¶ 94-112; Amador FAC ¶¶ 104-112.) Courts interpret and enforce NPDES permits “like any other contract.” Nat. Res. Def. Council, Inc. v. County of Los Angeles (“NRDC II”), 725 F.3d 1194, 1204 (9th Cir. 2013). If the language of the permit “is plain and capable of legal construction, the language alone must determine the permit’s meaning.” Id. at 1204–05 (quoting Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., MD, 268 F.3d 255, 270 (4th Cir. 2001)). 1. Sufficiency of Data Defendants argue that plaintiffs lack sufficient data to prove any violation of the Small MS4 Permit because plaintiffs rely largely on data from the discharge sampling points denoted MCSP5 and MCSP6. Defendants assert that MCSP5 and MCSP6 do not discharge to Mule Creek. (Mot. at 19.) However, as the court found in its previous order, there is a question of fact as to whether the sampled discharges from MCSP5 and MCSP6 reached Mule Creek. (See Order Re: Pls.’ MSJ at 21; see also, e.g., CSPA Ex. 9-10, MCSP Discharge Notifications (Docket No. 96-2 at 165-68) (notifying regional water board of discharges to Mule Creek from 3 The term “MS4”--an abbreviation for “municipal separate storm sewer system”--refers to Mule Creek State Prison’s stormwater collection system, “which is composed of a variety of conveyances (such as drains, ditches, swales, and outfalls) that operate to channel storm water away from the facility, toward Mule Creek.” (Order Re: Pls.’ MSJ at 2.) The regional water board issued the Small MS4 Permit under the Clean Water Act’s National Pollutant Discharge Elimination System (“NPDES”). (Id. at 3.) MCSP5 and MCSP6.)4 2. Provision B.1 Both plaintiffs allege violation of Provision B.1, which states: “Discharges of waste from the MS4 that are prohibited by Statewide Water Quality Control Plans or applicable Regional Water Quality Control Plans (Basin Plans) are prohibited.” (Defs. Ex. A, State Water Res. Ctrl. Bd. Water Quality Order No. 2013-001-DWQ, NPDES Gen. Permit No. CAS000004 (“Small MS4 Permit”) (Docket No. 95-7 at 1-114) § B.1.) The Small MS4 Permit contains “discharge prohibitions” and “effluent limitations” that regulate the quality of defendants’ discharges. (See id. §§ B.1-D.) Provision B.1 is one such discharge prohibition. (Id. § B.1.) In contrast, the permit’s “receiving water limitations” require that defendants’ discharges not “cause or contribute” to an exceedance of Basin Plan water quality standards in the receiving water. (Id. § D.) Plaintiffs argue that defendants’ discharges exceeded the Basin Plan’s water quality standards. (CSPA Opp’n at 31-35; Amador Opp’n at 23-25.) However, Provision B.1--a discharge limitation--does not incorporate the water quality standards, only the Basin Plan’s waste prohibitions. (See Small MS4 Permit § B.1.) While the receiving water limitations explicitly
4 Plaintiffs also argue that there is (1) post-complaint data from MCSP2 and MCSP3 and (2) pre-complaint data showing a “continuing likelihood of a recurrence in intermittent or sporadic violations” under Gwaltney of Smithfield v. Chesapeake Bay Foundation, 484 U.S. 49 (1987). The court need not address these points because the existence of a question of fact as to whether the samples from MCSP5 and MCSP6 discharged to Mule Creek requires denial of summary judgment. incorporate the Basin Plan’s water quality standards, Provision B.1 does not, nor do any other discharge prohibitions or effluent limitations. (See id. §§ B.1-D.) It appears that the regional water board purposely excluded the water quality standards from the permit’s discharge limitations, as water quality standards apply only to receiving waters (i.e., waters of the United States), not to discharges. The Basin Plan’s “[water quality] objectives . . . are intended to govern the levels of constituents and characteristics in the main water mass unless otherwise designated,” and “may not apply at or in the immediate vicinity of effluent discharges . . . .” (See Cent. Valley Reg’l. Water Quality Ctrl. Bd., Water Quality Ctrl. Plan (Feb. 2019) (“Basin Plan”) (Docket No. 95-7 at 545- 1006) at 3-2; see also Small MS4 Permit ¶ 40 (equating “water quality standards” with “receiving water limitations” and stating that permittees “achiev[e] the water quality standards in the receiving water”).) The application of water quality standards exclusively to receiving waters is consistent with statutory, regulatory, and Ninth Circuit authority. See 33 U.S.C. § 1313(c)(2)(A) (“water quality standards shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters . . .” (emphasis added); 40 C.F.R. § 131.3 (“Water quality standards are provisions of State or Federal law which consist of a designated use or uses for the waters of the United States and water quality criteria for such waters based upon such uses.”) (emphasis added); Nat. Res. Def. Council, Inc. v. County of Los Angeles (“NRDC I”), 673 F.3d 880, 885, 887 (9th Cir. 2011), rev’d on other grounds, Los Angeles Cnty. Flood Control Dist. v. Nat. Res. Def. Council, Inc., 568 U.S. 78 (2013) (distinguishing between “effluent limitations” and “water quality standards” and explaining that “the regional boards’ water quality plans, called ‘basin plans,’ must address the beneficial uses to be protected as well as water quality objectives . . .”) (internal quotation marks omitted). Defendants correctly point out that Provision B.1 refers to wastes specifically prohibited by the Basin Plan. (See Small MS4 Permit § B.1.) Such waste prohibitions and other discharge requirements are contained within various Basin Plan amendments (which are listed on unnumbered pages at the beginning of the plan). (See Basin Plan.) For example, Amendment 11 contains a “prohibition of waste discharge from leaching and percolation systems within the Anderson-Cottonwood Irrigation District,” and Amendment 24 contains a “prohibition of waste discharge from individual disposal systems in the Chico Urban Area.” (Id.) Plaintiffs have not identified, nor has the court found, any Basin Plan amendment--or any other provision of the Basin Plan--with a discharge prohibition that applies to defendants. Defendants have therefore established that plaintiffs cannot demonstrate a violation of Provision B.1. Accordingly, the court will grant partial summary judgment for defendants on plaintiffs’ second claims to the extent that they allege violations of Provision B.1 of the Small MS4 Permit. 3. Provision B.2 Both plaintiffs allege violations of Provision B.2, which provides: “Discharges of storm water from the MS4 to waters of the U.S. in a manner causing or threatening to cause a condition of pollution or nuisance as defined in Water Code § 13050 are prohibited.” (Small MS4 Permit § B.2.) The California Water Code defines pollution as “an alteration of the quality of the waters of the state by waste to a degree which unreasonably affects either of the following: (A) The waters for beneficial uses. (B) Facilities which serve these beneficial uses.” Cal. Water Code § 13050(l)(1). Defendants argue that plaintiffs are unable to establish a violation of Provision B.2 because Mule Creek has not been included on the State Water Board’s Section 303(d) list, which identifies “impaired waterbodies.” (See Defs.’ Separate Statement of Undisputed Facts (“Defs.’ SUF”) (Docket No. 95-2) ¶ 51.) Based on this fact, defendants contend, plaintiffs cannot prove that Mule Creek’s beneficial uses were affected. (Mot. at 24-25.) However, the plain language of Provision B.2 does not require plaintiffs to proffer such evidence. The provision states that the discharges must “caus[e] or threaten[] to cause a condition of pollution or nuisance . . . .” (Small MS4 Permit § B.2 (emphasis added).) Based on the permit’s language, evidence relating to whether the discharges actually impaired a beneficial use of Mule Creek is not necessary to find a violation under Provision B.2; it would be sufficient to prove that the discharges merely threatened to impair a beneficial use. (See id.) Defendants’ only other argument concerning Provision B.2 is premised on their contention that MCSP5 and MCSP6 did not discharge to Mule Creek. (See Mot. at 25.) As stated above, a question of fact exists as to that issue. Accordingly, the court will deny summary judgment as to plaintiffs’ second claims to the extent they allege violations of Provision B.2 of the Small MS4 Permit. 4. Provision B.3 CSPA’s second claim alleges violation of Provision B.3, which states in relevant part: “Discharges through the MS4 of material other than storm water to waters of the U.S. shall be effectively prohibited, except as allowed under this Provision or as otherwise authorized by a separate NPDES permit.” (Small MS4 Permit § B.3 (emphasis added).) a. Effectively Prohibit and Maximum Extent Practicable Standards Defendants argue that CSPA is unable to establish a violation of Provision B.3 because defendants have used “best efforts” to prevent non-stormwater from discharging through the MS4, in compliance with the “maximum extent practicable” standard. (Mot. at 26-27.) Relying on Defenders of Wildlife v. Browner, 191 F.3d 1159 (9th Cir. 1999), defendants seem to argue that “maximum extent practicable” is the standard imposed by all municipal permit provisions. This argument incorrectly equates Provision D’s “effectively prohibit” standard with the maximum extent practicable standard, misconstruing not only the permit language, but also the Clean Water Act and Ninth Circuit authority. The Act provides in relevant part: “Permits for discharges from municipal storm sewers . . . (ii) shall include a requirement to effectively prohibit non-stormwater discharges into the storm sewers; and (iii) shall require controls to reduce the discharge of pollutants to the maximum extent practicable . . . .” 33 U.S.C. § 1342(p)(3)(B) (emphasis added). The language of the Act clearly treats the requirement to effectively prohibit non-stormwater discharges as distinct from the requirement to implement pollution controls to the maximum extent practicable. See id. The Small MS4 Permit similarly treats these as separate requirements. (Compare Small MS4 Permit § B.3 with id. § C.1.) The court declines to adopt defendants’ interpretation, which would render § 1342(p)(3)(B)(ii) and Provision B.3 superfluous. See Browner, 191 F.3d at 1165 (“This court generally refuses to interpret a statute in a way that renders a provision superfluous.”) (quoting Government of Guam ex rel. Guam Econ. Dev. Auth. v. United States, 179 F.3d 630, 634 (9th Cir. 1999)); NRDC II at 1206 (“[a] court must give effect to every word or term in an NPDES permit and reject none as meaningless or surplusage”) (quoting In re Crystal Props., Ltd., 268 F.3d 743, 748 (9th Cir. 2001)) (alterations adopted). Browner does not support defendants’ interpretation of Provision B.3. Browner dealt with a purported conflict between § 1342(p)(3)(B)(iii), requiring controls to reduce pollutants to the maximum extent practicable, and § 1311(b)(1)(C), a provision not at issue here that requires certain permits to mandate strict compliance with state water-quality standards. See 191 F.3d at 1164. The Browner court held that Congress did not intend to require municipalities to comply with § 1311(b)(1)(C) because that interpretation would render the maximum extent practicable standard at § 1342(p)(3)(B)(iii) superfluous. See id. at 1165– 66. The court did not discuss the separate requirement that permits effectively prohibit non-stormwater discharges and did not hold that all municipal permit provisions apply the maximum extent practicable standard. See id. at 1164-67. On the contrary, the Ninth Circuit has indicated that “maximum extent practicable” is not “the exclusive measure that may be applied to municipal storm sewer discharges,” but rather, a regulatory agency may require a discharger to exceed that standard. See NRDC I at 897 (quoting Bldg. Indus. Ass’n of San Diego Cnty. v. State Water Res. Control Bd., 124 Cal. App. 4th 866 (4th Dist. 2004)). Defendants have not cited any authority indicating that the court should merge Provision D’s effective prohibition of non-stormwater discharges with the maximum extent practicable standard. Accordingly, the court will deny summary judgment on CSPA’s second claim as to Provision B.3 based on defendants’ purported compliance with the maximum extent practicable standard. Cf. San Francisco Baykeeper v. City of Sunnyvale, No. 5:20-cv-00824 EJD, 2020 WL 7696078, at *7 (N.D. Cal. Dec. 28, 2020) (rejecting argument that municipality’s implementation of a program to prevent illicit connections and discharges satisfied MS4 permit provision “effectively prohibit[ing] the discharge of non-stormwater” as a matter of law). And even if the maximum extent practicable standard did govern Provision D, there is a question of fact as to whether defendants met that standard, as discussed below. b. Sufficiency of Data Defendants also present arguments concerning the data CSPA relies on. CSPA tested samples from the MS4 and found pharmaceuticals and caffeine. (CSPA Ex. 29, Expert Op. Report of Robert W. Emerick (“Emerick Report”) (Docket No. 96-5 at 51-70) at 15.) Defendants argue that CSPA’s pharmaceutical and caffeine sampling data is insufficient to demonstrate a violation. They contend that because CSPA’s experts collected samples from ponded water during dry weather and not during a Significant Rain Event, CSPA will be unable to establish that those samples reached Mule Creek. (Mot. at 26.) CSPA’s expert Dr. Emerick opined that if pharmaceuticals and caffeine were “observed in stormwater originating from the Mule Creek Prison complex, it is reasonable to suggest that there is some contribution of sewage in the stormwater.” (Emerick Report at 8.) Dr. Emerick also explained that it is possible for wastewater to enter the storm drain via underground exfiltration, and that during his site visit, “[i]t was evident that there had been a recent discharge” despite the dry conditions. (Id. at 8-9, 11.) This evidence creates a question of fact as to whether the samples containing pharmaceuticals and caffeine discharged through the MS4 despite the dry weather. Defendants next argue that CSPA cannot prove that sewage was present in the stormwater because the stormwater did not contain high levels of ammonia. Defendants point to the testimony of regional water board employee Elizabeth Lee, who stated that she would expect to observe ammonia levels “in the hundreds, maybe even thousands” for “true wastewater,” while the data revealed an ammonia level of “less than 0.20.” (Dep. of Elizabeth Lee (Docket No. 95-3 at 169-91) at 137-38.) CSPA points to Dr. Emerick’s testimony that while ammonia is one factor engineers analyze, ammonia is “not a reliable indicator” of the presence of sewage in stormwater. (Dep. of Dr. Robert Emerick (Docket No. 96-5 at 71-97) at 56-57.) This evidence establishes a dispute of material fact as to whether the ammonia testing data proves that sewage was not present in the stormwater. Finally, defendants argue that there is no evidence of “commingling” of stormwater and non-stormwater. (Mot. at 27.) However, the court found in its previous order that there is conflicting evidence that “creates a genuine dispute of material fact as to whether defendants are violating [P]rovision B.3 based on alleged cross-contamination [of stormwater] from the sanitary sewer system.” (Order Re: Pls.’ MSJ at 21-23.) Accordingly, the court will deny summary judgment as to CSPA’s second claim to the extent it alleges violations of Provision B.3 of the Small MS4 Permit. 5. Provision C.1 Amador’s second claim alleges violation of Provision C.1, which states in relevant part: “Permittees shall implement controls as required by this Order to reduce the discharge of pollutants from their MS4s to waters of the U.S. to the MEP [maximum extent practicable].” (Small MS4 Permit § C.1.) “The MEP standard requires Permittees to apply Best Management Practices (BMPs) that are effective in reducing or eliminating the discharge of pollutants to the waters of the U.S.” (Small MS4 Permit ¶ 38.) “BMP development is a dynamic process and may require changes over time as the Permittees gain experience and/or the state of the science and art progresses. To do this, the Permittees must conduct and document evaluation and assessment of each relevant element of its program, and their program as a whole, and revise activities, control measures/BMPs, and measurable goals, as necessary to meet MEP.” (Id.) “MEP is the cumulative effect of implementing, evaluating, and making corresponding changes to a variety of technically appropriate and economically feasible BMPs, ensuring that the most appropriate controls are implemented in the most effective manner.” (Attachment I at 4.) This process of “implementing, evaluating, revising, or adding new BMPs is commonly referred to as the iterative process.” (Id. (emphasis added).) Defendants contend that they engaged in the iterative process and point to implemented BMPs, including informational memoranda to Mule Creek State Prison staff regarding the stormwater prevention program; “fabric, wattles, designed v- ditches to catch sediment from runoff, and paved aprons to filter or reduce contaminants in discharges”; curbs that redirect non- stormwater flows to appropriate drainage areas; various materials- and waste-management practices; and the installation of a permanent monitoring station at MCSP2 and MCSP3. (See Decl. of Anthony Orta (Docket No. 95-4) ¶¶ 8-13.) Defendants also point to the Small MS4 Permit Annual Reporting, which “documents and assesses the Small MS4 Permit program elements.” (Defs.’ SUF ¶ 29.) Amador contends that defendants did not engage in the iterative process and points to notices from the regional water board concerning defendants’ receiving water BMPs. In February 2022, the regional water board notified defendants that due to exceedances of water quality standards, they were required to provide the board with “[BMPs] to be implemented to address the receiving water exceedances and a schedule of the BMP implementation.” (Amador Ex. 5, Comments to the Phase II MS4 Annual Reports and 13383 Order Quarterly Monitoring Reports (Feb. 11, 2022) (“Feb. 2022 Comments”) (Docket No. 97-4 at 16-20) at 2.) The board also stated that “BMPs which can immediately address the exceedances must be proposed and immediately implemented.” (Id.) In November 2022, the board notified defendants that they had failed to comply with its previous requirement to implement BMPs addressing the receiving water’s exceedance of water quality standards. (Amador Ex. 6, Clarification to the Comment Letter Dated 11 February 2022 (Nov. 3, 2022) (Docket No. 97-4 at 21-31) at 2.) Specifically, while defendants identified BMPs related to irrigation water, they failed to implement BMPs addressing aluminum and zinc despite exceedances of aluminum and zinc water quality objectives. (Id. at 3.) The board’s findings align with the testimony of Paul Orta (who was responsible for managing BMPs) that he was only aware of BMPs designed to “reduce sediment,” not to address any other pollution issues. (See (CSPA Ex. 2, Dep. of Paul Orta (“Orta Dep.”) (Docket No. 96-2 at 47-72) at 98.) This evidence establishes a question of fact as to whether defendants implemented BMPs to address all known water quality issues. Amador also contends that defendants have failed to evaluate and update some of the cited BMPs since the initiation of this action. For instance, the bioswales were in place prior to January 14, 2019 and were not updated after that date. (Orta Dep. at 97). Mr. Orta testified that while some measures had been evaluated for effectiveness (see id. at 111), he was unsure if others--including the bioswales--had been evaluated (see id. at 98). Further, although defendants were aware of multiple necessary repairs to the stormwater and sewer systems--repairs that Mr. Orta classified as BMPs--defendants had not made any of those repairs as of August 2022. (Orta Dep. at 114.) This evidence establishes a question of fact as to whether defendants evaluated and made appropriate changes to their BMPs as they gained knowledge and experience, which is central to the iterative process. (See Small MS4 Permit ¶ 38; Attachment I at 4.) It is not sufficient to merely implement some BMPs; defendants must “evaluate” and “revise” their BMPs, possibly adding additional BMPs over time, to “ensure that the most appropriate controls are implemented in the most effective manner.” (See Attachment I at 4.) The court therefore finds that there is a genuine issue of material fact as to whether defendants engaged in the iterative process. Accordingly, the court will deny summary judgment as to Amador’s second claim to the extent it alleges violation of Provision C.1 of the Small MS4 Permit. 6. Provision D Both plaintiffs’ second claims allege violations of Provision D. This provision, titled Receiving Water Limitations, states: “Discharges shall not cause or contribute to an exceedance of water quality standards contained in a Statewide Water Quality Control Plan, the California Toxics Rule (CTR), or in the applicable Regional Water Board Basin Plan.” (Small MS4 Permit § D.) Provision D further provides that defendants will timely implement “control measures/BMPs and other actions to reduce pollutants in the discharges and other requirements of this Order including any modifications,” and outlines procedures for such implementation. (Id.) a. Sufficiency of Data Defendants contend that plaintiffs’ data does not account for “background” sources--i.e., upstream and non-human sources of contaminants5--and is therefore insufficient to establish exceedances of the Basin Plan’s water quality standards. In support of this argument, defendants cite two excerpts of guidance relating to the Basin Plan water quality standards.6 The State Water Resources Control Board’s Water Quality
5 Defendants identify animal waste from cattle ranches, birds, and deer, and naturally occurring metals in upstream soil as possible background contributors. (Mot. at 21.)
6 Defendants seem to argue that background contributions are relevant in determining violations of all provisions of the Small MS4 Permit. However, defendants’ arguments pertain only to the Basin Plan’s water quality standards, which are relevant to Provision D but not to any other provisions at issue. Defendants also cite expert testimony and various non- binding regulatory sources for the proposition that background sources are considered as a matter of general practice when evaluating sampling data. However, the issue as framed by defendants is whether the Small MS4 Permit requires exclusion of background to establish an exceedance, not whether background is typically considered in the field. (See Mot. at 20.) Standards Variance Policy provides in relevant part: “In the context of a TMDL [total maximum daily load] or a BASIN PLAN amendment developed to implement the BACTERIA WATER QUALITY OBJECTIVES, a natural source exclusion approach may be utilized after all anthropogenic sources of bacteria are identified, quantified, and controlled.” (Defs.’ Ex. D, Part 3 of the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California — Bacteria Provisions and Water Quality Standards Variance Policy (Docket No. 95-8 at 1-10) at 5.) The Policy then states that in circumstances where there is a naturally occurring background concentration of bacteria, the relevant total maximum daily load or Basin Plan amendment can account for that natural background by allowing some exceedance of water quality objectives. (See id.) This language does not require exclusion of background sources in determining violations, but merely presents natural source exclusion as one possible approach that regulators can take in crafting a total maximum daily load or Basin Plan amendment.7 Defendants next point to guidance in the Basin Plan, which provides in relevant part:
Numerical receiving water limitations will be established in Board orders for constituents and parameters which will, at a minimum, meet all applicable water quality objectives. However, the water quality objectives do not require improvement over naturally occurring background concentrations. In cases where the natural background concentration of a particular constituent exceeds an applicable water quality objective, the natural background concentration will be considered to comply with the objective. 7 As discussed above, there is no Basin Plan amendment applicable to Mule Creek. (Basin Plan at 4-27.) This language is part of guidance explaining the regional water board’s “[c]onsiderations” in carrying out control actions, which range from surveying and monitoring to remedial measures including NPDES permits, discharge prohibitions, and Cease and Desist and Cleanup and Abatement orders. (See id. at 4-10, 4-21.) While this guidance indicates that the regional water board may consider background in taking various regulatory actions, it does not establish that the permit requires exclusion of background sources to demonstrate an exceedance of water quality standards. Crucially, the Basin Plan’s water quality objectives do not require consideration of background. (See Basin Plan at 3-3 to 4-1.) Provision D incorporates only the Basin Plan’s water quality standards, not other guidance contained in the plan. (See Small MS4 Permit § D.) See also NRDC II at 1199 (explaining that permit provision prohibiting “discharges from the MS4 that cause or contribute to the violation of the Water Quality Standards or water quality objectives” incorporates the basin plan’s “standards” and prohibits discharges that cause or contribute to the violation “of those incorporated standards”) (emphasis added). A report from the regional water board rejected defendants’ suggestion that background sources were relevant in determining exceedances of the Basin Plan water quality objective applicable to fecal coliforms. (See Pls.’ Ex. 21, Review of Revised Storm Water System Investigation Findings Report (Docket No. 45-20 at 59-80) at 8.) The report explains that while “[coliform bacteria] can come from many sources other than human waste, it is important to note that the Basin Plan Water Quality Objective . . . does not specify that the limit is restricted to human sources. Fecal coliforms, regardless of source, are subject to this Water Quality Objective.” (Id.) This explanation from the regional water board confirms that the language of the applicable water quality objectives--which do not require consideration of background--determines whether violations have occurred. See NRDC II at 1207 (giving “significant weight” to regional water board’s rejection of defendants’ position because “intent of the permitting authority” is relevant to permit interpretation, even where permit’s language is unambiguous). While background data is not necessary to establish an exceedance of the water quality standards, it may be relevant in determining whether defendants’ discharges “caused or contributed to” an exceedance under Provision D. (See Decl. of Timothy Simpson (Docket No. 95-5) ¶¶ 17-24.) There is sufficient evidence to establish a question of material fact as to whether an exceedance is attributable to defendants, not to background sources. (See, e.g., Defs.’ Ex. A to Decl. of Alanna Lundgren (“Lundgren Decl.”), Quantification of Sources of Fecal Pollution at Mule Creek (Jan. 2021) (Docket No. 95-3 at 4-40) at ii (stating that one-third of E. coli sampling data collected showed that “the concentration increase moving past the prison property was sufficient to cause a downstream water quality standard exceedance where the upstream sample was in compliance”); CSPA Ex. 22, Review of Revised Storm Water System Investigation Findings Report (Docket No. 96-4 at 1-22) at 17 (stating that there is “strong evidence that wastewater of some sort is entering the system,” indicating that “discharges from the stormwater system have impacted, and threaten to continue to impact, Mule Creek”); Ex. B to Lundgren Decl., Revised Stormwater Collection System Investigation Report of Findings (June 2020) (Docket No. 95-3 at 41-168) at 88 (indicating that while exceedances of aluminum, iron, and magnesium were likely naturally occurring, zinc exceedances were attributable to industrial materials at defendants’ facility). Further, despite the sources cited by defendants suggesting that the regional water board may consider background, the board nonetheless required defendants to take remedial actions in response to exceedances of water quality standards. (See, e.g., Feb. 2022 Comments at 2.) Accordingly, the court finds that the issue of possible background sources does not warrant summary judgment on plaintiffs’ second claims as to Provision D. Defendants also point out, as discussed above, that the Basin Plan’s water quality objectives apply to the receiving water (i.e., Mule Creek), not to discharges. Defendants’ argument on this point is unclear. They first seem to argue that plaintiffs solely rely on sampling data from discharges at MCSP2, MCSP3, MCSP5, and MCSP6 and therefore cannot establish that the receiving water exceeded water quality objectives. (Defs.’ Reply at 8.) Defendants later state that plaintiffs rely on samples from MCSP4 (which is located within Mule Creek). (Id. at 18.) At any rate, plaintiffs rely not only on discharge sampling data from the outfalls, but also sampling data from Mule Creek. (See CSPA Opp’n at 15; Amador Opp’n at 14.) For instance, plaintiffs point to sampling data collected from February 2019 to January 2021 at MCSP4 indicating that samples from Mule Creek exceeded water quality standards for E. coli and metals. (See CSPA Ex. 1, Decl. of Karen Ashby (Docket No. 45-4) at 11-13). The combination of sampling data from defendants’ discharges and from within Mule Creek is sufficient to establish a question of fact as to whether defendants’ discharges caused or contributed to an exceedance of water quality standards in Mule Creek. See NRDC II at 1204, 1210 (holding that defendants’ discharges caused or contributed to exceedance of basin plan water quality standards based on sampling data from receiving water where defendants discharged pollutants at issue to receiving water); McClellan Ecological Seepage Situation (MESS) v. Weinberger, 707 F. Supp. 1182, 1203 (E.D. Cal. 1988), vacated on other grounds McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir. 1995) (finding question of fact as to whether defendants “caused” exceedance of receiving water limitations where data showed exceedances in the receiving water and in defendants’ discharges). Accord Cal. Sportfishing Prot. All. v. River City Waste Recyclers, LLC, 205 F. Supp. 3d 1128, 1151 (E.D. Cal. 2016) (Mueller, J.) (finding that discharges in exceedance of water quality standards “cause[d] or contribute[d] to an exceedance of any applicable water quality standards”); Cal. Sportfishing Prot. All. v. Chico Scrap Metal, 124 F. Supp. 3d 1007, 1020-22 (E.D. Cal. 2015) (Burrell, J.) (same). Defendants also argue that plaintiffs cannot establish that any exceedance of water quality standards was solely attributable to defendants. (Mot. at 23.) This argument is unsupported by the plain language of the permit, which states that discharges shall not “cause or contribute” to an exceedance of water quality standards. (See Small MS4 Permit § D (emphasis added).) Defendants do not point to any language in the Small MS4 Permit, Basin Plan, or other authority suggesting that exceedances must be solely attributable to defendants to establish a violation of Provision D. b. Section 303(d) List Defendants argue that because Mule Creek has not been included on the State Water Board’s Section 303(d) list, plaintiffs cannot prove that Mule Creek exceeded water quality standards under Provision D. However, defendants have not identified any language in the permit--or any other authority-- indicating that being placed on the 303(d) list is necessary to find a violation of Provision D. Further, the standards for being 303(d)-listed and for violating Provision D are not coextensive. Waterbodies with “chronic or recurring monitored violations” are included on the 303(d) list. (See Attachment I at 3.) In contrast, Provision D requires only an “exceedance” of water quality standards. (Small MS4 Permit § D.) c. Iterative Process Defendants argue that because they have engaged in the iterative process, they cannot be liable under Provision D. (Mot. at 32.) As discussed above, there is a question of fact as to whether defendants engaged in the iterative process. Regardless, the language of Provision D does not provide that engaging in the iterative process excuses defendants from liability. Provision D lays out two separate requirements: first, that discharges not exceed water quality standards, and second, that defendants implement measures to control any exceedances. (See Small MS4 Permit § D.) The regional water board has explained that, with respect to receiving water limitations like Provision D, “the iterative process does not provide a ‘safe harbor’ to MS4 permittees.” (See MS4 Fact Sheet at 22.) “When a discharger is shown to be causing or contributing to an exceedance of water quality standards, that discharger is in violation of the relevant discharge prohibitions and receiving water limitations of the permit and potentially subject to enforcement . . ., even if the discharger is actively engaged in the iterative process.” (Id.) Similarly, in NRDC I, the Ninth Circuit held that the iterative process did not provide a “safe harbor” for violations because the permit language did not support that interpretation, and because the iterative process is not intended to “absolv[e] noncompliance.” 673 F.3d at 897. Accordingly, the court will deny summary judgment on plaintiffs’ second claims to the extent they allege violations of Provision D of the Small MS4 Permit. C. Violations of Industrial General Permit Only Amador’s third claim alleges violation of the Industrial General Permit. (See Amador FAC ¶¶ 113-22.) Amador indicates that it “withdraw[s] the third cause of action for discharges in violation of the Industrial General Permit” and “will no longer pursue this claim.” (Amador Opp’n at 8-9.) The court will therefore grant defendants’ motion for summary judgment on Amador’s third claim. eee eI EE EINE III OS IN EE OEE IS ESE I EO
IT IS THEREFORE ORDERED that defendants’ motion for summary judgment (Docket No. 95) be, and the same hereby is, GRANTED as to Amador’s first claim, to the extent it alleges violations resulting from operation of the land application areas; GRANTED as to CSPA’s second claim and Amador’s second claim, to the extent they allege violations of Provision B.1 of the Small MS4 Permit; and GRANTED as to Amador’s third claim. Summary judgment is DENIED in all other respects. 91 Dated: January 10, 2023 be td, 4 DY □□ UNITED STATES DISTRICT JUDGE