Friends of the Earth, Inc. v. Gaston Copper Recycling Corp.

179 F.3d 107, 29 Envtl. L. Rep. (Envtl. Law Inst.) 21213, 48 ERC (BNA) 1641, 1999 U.S. App. LEXIS 11201, 1999 WL 351165

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 2, 1999
• Docket: No. 98-1938
• Status: Published

Opinions

Affirmed by published opinion. Judge HAMILTON wrote the majority opinion, in which Judge WILLIAMS joined. Chief Judge WILKINSON wrote a dissenting opinion.

OPINION

HAMILTON, Circuit Judge:

Friends of the Earth, Inc. (FOE) and Citizens Local Environmental Action Network, Inc. (CLEAN) brought this citizens suit against Gaston Copper Recycling Corporation (Gaston Copper) pursuant to § 505 of the Federal Water Pollution Control Act, see 38 U.S.C. § 1365, alleging that Gaston Copper committed various violations of a March 1, 1991 permit issued to Gaston Copper by the South Carolina Department of Health and Environmental Control (DHEC). In the citizens suit, FOE and CLEAN sought civil penalties, declaratory and injunctive relief, as well as attorneys’ fees, expert witness fees, and costs. Following a bench trial, the district court dismissed the citizens suit for lack of subject matter jurisdiction, concluding that FOE and CLEAN lacked standing. For the reasons stated herein, we affirm the district court’s dismissal for lack of subject matter jurisdiction.

I

A

Congress enacted the Federal Water Pollution Control Act (Clean Water Act or CWA), see 33 U.S.C. §§ 1251-1376, to restore and maintain the “chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C § 1251(a). To this end, the CWA prohibits the discharge of pollutants into navigable waters without a permit. See 33 U.S.C. §§ 1311(a), 1362(12)(A). Permits “place limitations on the amount of effluent (pollution) corporations may discharge into the water, and require permit-holders to monitor their effluent discharges, to file test results and other data with the Environmental Protection Agency, and to cooperate with state agencies by placing information on Discharge Monitoring Reports (DMR’s).” Public Interest Research Group v. Magnesium Elektron, Inc., 123 F.3d 111, 115 (3d Cir.1997); see also 40 C.F.R. §§ 122.41®, 122.48. If a permit holder fails to comply with any condition of its permit, the permit holder violates the CWA. See id. The Environmental Protection Agency (EPA)and state agencies, or citizens may bring suits against those who violate permits. See 33 U.S.C. § 1365; see also Magnesium, 123 F.3d at 114. In a citizens suit, citizens may request civil penalties, declaratory and injunctive relief, as well as costs of litigation, “including reasonable attorney and expert witness fees.” 33 U.S.C. § 1365.

B

Gaston Copper “owns and operates a non-ferrous metals smelting facility located in Gaston, Lexington County, South Carolina.” (J.A.70). The smelting facility (Facility) sits on Lake Watson, a fourteen million gallon lake that is wholly contained, except for overflow.¹ When Gaston Copper purchased its smelting facility in 1990, the Facility was covered by a National Pollutant Discharge Elimination System (NPDES) Permit issued by DHEC. Of relevance, on February 13, 1991, DHEC reissued the permit for the Facility, with an effective date of March 1, 1991 (March 1, 1991 Permit). The March 1, 1991 Permit required contaminated storm water to be treated prior to discharge into Lake Watson; authorized the discharge of limited quantities of effluents, including biochemical oxygen demand, cadmium, copper, lead, zinc, and pH, after treatment from the Facility into Lake Watson; contained a schedule for compliance with the effluent limitations; and required monitoring and reporting for the effluent discharges.

C

On September 14, 1991, FOE and CLEAN, two non-profit environmental organizations dedicated to protecting and improving water quality, brought, on their own behalf and on behalf of their members, this citizens suit against Gaston Copper in the United States District Court for the District of South Carolina pursuant to the citizens suit provision of the CWA, see 33 U.S.C. § 1365, alleging that Gaston Copper violated its March 1, 1991 Permit. The citizens suit sought civil penalties, declaratory and injunctive relief, as well as attorneys’ fees, expert witness fees, and costs. According to FOE and CLEAN, Gaston Copper had violated and continued to violate its March 1, 1991 Permit by exceeding the effluent limitations for certain pollutants, by failing to comply with certain monitoring and reporting requirements, and by failing to comply with the schedule of compliance with respect to the effluent limitations.

FOE and CLEAN averred that Gaston Copper’s March 1, 1991 Permit violations affected their “ability to protect and improve the waters of South Carolina” and also affected the “health, economic, recreational, aesthetic and environmental interests” of their members, who “reside in the vicinity of, or own property [near,] or recreate in ... the waters of the Boggy Branch of Bull Swamp Creek, the North Fork of the E disto River, and tidally related waters affected by the [Facility’s discharge of pollutants.” (J.A. 21, 23). Further, FOE and CLEAN claimed that Gaston Copper’s failure to monitor and report in violation of its March 1, 1991 Permit “interfere[d] with efforts of [FOE and CLEAN’s] members to protect their health, economic, recreational, aesthetic and environmental interests by interfering with their ability to take action on their own behalf.” (J.A. 21-22, 23).

Gaston Copper moved to dismiss the case on, inter alia, the ground that FOE and CLEAN lacked standing to bring the suit, and the district court denied the motion. Thereafter, FOE and CLEAN moved for summary judgment on their claim that Gaston Copper had violated its March 1, 1991 Permit. The district court denied the motion, and the case proceeded to a bench trial on FOE and CLEAN’s CWA claims. At trial, FOE and CLEAN presented evidence in support of their position that they had standing and also in support of their claims that Gaston Copper violated its March 1, 1991 Permit. Of relevance, FOE and CLEAN claimed that they had representational standing because their members suffered “injuries in fact” to protected interests in allegedly affected waterways, and that such injuries were “fairly traceable” to Gaston Copper’s alleged violations of its March 1, 1991 Permit.

Specifically, in support of their claim that their members suffered injury in fact, FOE and CLEAN presented the testimony of three members asserting that they each had a legally protected interest in the waterways that were allegedly harmed by Gaston Copper’s alleged violations of its March 1, 1991 Permit. First, Wilson Otto Shealy, a member of CLEAN, testified that he lives four miles downstream from the Facility and that his property includes a sixty-seven acre lake, in which he and his family fish and swim.² Next, Guy Jones, a member of FOE and CLEAN and owner/president of a canoe company, testified that he guides trips on the E disto River. Last, William McCullough, Jr., a member of FOE, testified that he scuba dives in the E disto River.

According to these members’ testimony, their protected recreational and economic interests in the waterways that they used were injured in fact by Gaston Copper’s alleged March 1, 1991 Permit violations. For example, Shealy testified that he believed that his lake contained mercury because he read an article in the local newspaper that all the lakes in his county, Lexington County, contained mercury. Shealy also testified that his concern that his lake contained effluents discharged by Gaston Copper in violation of its March 1, 1991 Permit stemmed from the fact that DHEC tested his lake prior to the time period relevant to this suit, and determined that there were effluents in his lake.³ Shealy further testified that because of his concern that Gaston Copper is discharging pollution, he only eats the fish he catches from his lake “on occasion,” and he only allows his grandchildren to swim in the summer once per day. (J.A. 76). Also, according to Shealy, his property value has diminished because of Gaston Copper’s alleged discharges, and he knows his property value has diminished because he has “had people [right outside the court house] ... refer to [his] place as the polluted pond.” (J.A. 79).

Next, Jones testified that he was concerned that the E disto River contained effluents discharged by Gaston Copper and from other nonpoint sources such as fields and urban areas. Jones testified that his concern that Gaston Copper and other sources are polluting the Edisto River affects his enjoyment of canoeing and swimming because he has “greater confidence in [his company’s] ability to market [its] trips to the general public when [the company is] taking people into an area that [it knows its customers] are going to have a quality experience and that [its customers’] health is going to be not threatened by the quality of water.” (J.A. 131).

Last, McCullough testified that he was “concerned about all waters in South Carolina that [he] dive[s] having contaminants, especially heavy metals, [and] pesticide runoff.” (J.A. 144). According to McCullough, “[I]f he knew that the water contained contaminants, he would be ‘less likely to dive in it.’ ” (J.A. 145).⁴

To demonstrate that their members’ protected recreational and economic interests in waterways that they used were injured in fact, FOE and CLEAN also relied on the testimony of their expert, Dr. Bruce Bell, and two studies performed by Gaston Copper. Dr. Bell testified that while Gaston Copper’s March 1, 1991 Permit did not contain toxicity limits, it did contain water quality limits, and also required Gaston Copper to monitor its toxicity by performing whole effluent toxicity tests.⁵ According to Dr. Bell, in some months from 1991-1995, Gaston Copper’s laboratory toxicity tests revealed that the effluents had “observable effects” on the test organism. (J.A. 179). Dr. Bell, however, was unable to relate the toxicity tests to the alleged March 1, 1991 Permit water quality effluent limit violations.

The two studies performed by Gaston Copper for DHEC and relied upon by FOE and CLEAN, the 1993 and 1994 “Water Quality Studies] to Evaluate the Fish Tissue, the Macroinvertebrate Community and Sediments at Gaston Copper Recycling Corporation,” evaluated the concentration of certain effluents in fish tissue in Lake Watson; assessed the quality of the macroinvertebrate community in Lake Watson, Boggy Branch, and Bull Swamp Creek; and determined the concentrations of certain effluents in the sediments of Lake Watson, Boggy Branch, and Bull Swamp Creek. (J.A. 942-967, 968-991). First, the studies revealed “concentrations of certain heavy metals ... in fish tissue from Lake Watson,” (J.A. 943); however, no fish studies were performed on fish in Boggy Branch or Bull Swamp Creek. Second, both studies concluded that there had not been any “apparent degradation of the macroinvertebrate community due to the effluent discharge of Gaston Copper Recycling Corporation to Lake Watson.” (J.A. 943, 971). Finally, while the studies “reflected detectable quantities of copper, lead, mercury ... in Lake Watson,” (J.A. 944, 972), the studies indicated that only lead and copper were at detectable concentrations in the sediment of Boggy Branch and Bull Swamp Creek, and these concentrations were less than previous years, and “similar to values seen throughout South Carolina.” (J.A. 944, 960, 972, 990).

Next, in support of their claim that their members’ injuries in fact were fairly traceable to Gaston Copper’s conduct, FOE and CLEAN’s theory was that because Gaston Copper discharged harmful effluents into waterways upstream from the waterways in which Shealy, Jones, and McCullough had protected interests, the injuries to these members’ protected interests were fairly traceable to Gaston Copper’s discharges. In support of their theory, FOE and CLEAN presented evidence that during a 1990 public hearing for comment on the issuance of Gaston Copper’s March 1, 1991 Permit, the DHEC hearing officer stated that runoff flows from Lake Watson to Boggy Branch, to Bull Swamp Creek, and to the Edisto River. The 1990 DHEC statement formed the basis of the parties’ stipulation that Lake Watson flows into the Boggy Branch, “a tributary of Bull Swamp Creek, which flows into the North Fork of the Edisto River.” (J.A. 70). Essentially, based upon this stipulation, FOE and CLEAN argued that the effluents that Gaston Copper discharged, allegedly in violation of its March 1, 1991 Permit, flowed downstream and adversely affected their members’ protected recreational and economic interests.

At the conclusion of the bench trial, the district court determined that FOE and CLEAN failed to establish standing in their own right or representational standing to bring their claim representing the interests of their members. Of relevance, the district court noted that FOE and CLEAN failed to present evidence that the types of effluents discharged by Ga-ston Copper affected the waterways used by the members who testified. Further, the district court determined that the testimony of Shealy, Jones, and McCullough that they were concerned that Gaston Copper violated its March 1, 1991 Permit, did not, standing alone, establish that the waterways that they used were adversely affected. Thus, the district court determined that FOE and CLEAN failed to establish that any of their members suffered an injury in fact that was fairly traceable to Gaston Copper’s alleged permit violations, and, therefore, dismissed their action for lack of jurisdiction. FOE and CLEAN noted a timely appeal.

II

On appeal, FOE and CLEAN contend that the district court erred in dismissing their CWA citizens suit against Gaston Copper for alleged violations of its March 1, 1991 Permit for lack of standing. Specifically, FOE and CLEAN claim they established that their members suffered injuries in fact that were fairly traceable to Gaston Copper’s conduct. We review a district court’s dismissal of a case for lack of standing de novo. See Marshall v. Meadows, 105 F.3d 904, 905-06 (4th Cir.1997).

The United States Constitution provides that “ ‘[t]he judicial Power of the federal courts of the United States extends only to specified ‘Cases’ and ‘Controversies.’ ” Friends of the Earth v. Laidlaw Envtl. Servs., 149 F.3d 303, 306 (4th Cir.1998) (quoting U.S. Const, art. Ill, § 2, cl. 1). “The doctrine of standing has always been an essential component of [the] case or controversy requirement of federal jurisdiction.” Marshall, 105 F.3d at 906.

An association, such as FOE or CLEAN, “may have standing to sue in federal courts based either on an injury to the organization in its own right, or as the representative of its members who have been harmed.” Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974, 978 (4th Cir.1992). On appeal, FOE and CLEAN contend that they have representational standing. In order for FOE and CLEAN to have representational standing, they must establish that “(1) [their] own members would have standing to sue in their own rights; (2) the interests the organization seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief sought requires.the participation of individual members in the lawsuit.” Id.

Gaston Copper asserts that FOE and CLEAN have not established the first prong of representational standing: that their members would have an individual right to sue under the CWA for alleged violations of Gaston Copper’s March 1, 1991 Permit. The Supreme Court has set forth the requirements for individual standing. See Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). The Supreme Court has stated:

[A]t an irreducible minimum, Art. Ill requires the party who invokes the court’s authority to “show [1] that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” and [2] that the injury “fairly can be traced to the challenged action” and [3] “is likely to be redressed by a favorable decision.”

Id. (internal citations omitted).

We now turn to the first requirement: injury in fact. For injury in fact, the injury must be “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations, footnote, and quotations omitted). The Supreme Court has recognized that invasions of economic interests may constitute injury in fact. See Bennett v. Spear, 520 U.S. 154, 160, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Additionally, this circuit recognizes that invasions of aesthetic and environmental interests may constitute injury in fact. See Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113 (4th Cir.1988). Thus, for example, we have found standing when a member of an organization has established that his interest in using or recreating in an area is adversely affected by pollution that is fairly traceable to the defendant. See, e.g., Watkins, 954 F.2d at 980 (holding that organization whose members recreated on affected waters and noticed effects of pollution had standing if discharge in violation of permit contributed to pollution of affected waters, thereby interfering with recreational use).

In this case, FOE and CLEAN failed to establish injury in fact. While we recognize that Shealy and McCullough’s recreational interests and Jones’ economic interest are legally protected interests, we conclude that the evidence failed to establish that the waters in which Shealy, Jones, and McCullough recreated or used were actually, or in imminent threat of being, adversely affected by pollution. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130; Watkins, 954 F.2d at 979-80 (finding plaintiffs’ affidavits, which stated, “While boating, swimming, and fishing, I noticed that, although there is an abundance of aquatic life upstream from the Site, the River downstream from the Site appears to be comparatively barren and sterile,” and “When boating, I have noticed that the Savannah River downstream of the Savannah River Site has an unpleasant color and smell, which is different from the color and smell of the River upstream of the Site,” sufficient to confer standing if plaintiffs could show pollution from defendant “in publicly accessible portions of the Savannah River basin”). In this case, no evidence was presented that established that Shealy’s lake or the portions of the Edisto River that Jones and McCullough used were in fact adversely affected by pollution, let alone by Gaston Copper’s conduct. Indeed, there were no toxicity tests, or tests or studies of any kind, performed on waters from Shealy’s lake or the portions of the Edisto River that Jones and McCullough used. Further, none of the members even testified that there was an observable negative impact on the waters that they used or the surrounding ecosystem of such water. Their concerns were based on mere speculation as to the presence of pollution without any evidence to support their fears or establish the presence of pollutants in the allegedly affected waters.⁶

To be sure, to establish injury in fact, FOE and CLEAN rely on the testimony of Shealy, Jones, and McCullough. However, this testimony falls well short of the water line for injury in fact. Shealy, Jones, and McCullough merely testified that they were concerned that Gaston Copper’s conduct had resulted in pollution of water in which Shealy and McCullough recreated and of the water in which Jones’ company used. Obviously, the three members’ “concerns,” without some evidence concerning an observable negative impact on the waterways in which the members recreated or used, is not enough to establish that the waterways in which the members recreated or used, were in fact adversely affected by pollution. In sum, there was simply no evidence that the waterways in which the members each had a legally protected interest were adversely affected; the members’ concerns, standing alone, simply fail to establish that their legally protected interests were actually, or imminently threatened of being, adversely affected. See Magnesium, 123 F.3d at 123 (finding plaintiffs lacked standing when plaintiffs alleged that they had reduced their recreation in waterways because of concern of pollution, but plaintiffs failed to establish that defendant’s admitted violations of permit’s effluent standards harmed the waterway or posed a threat to the waterway); Simkins, 847 F.2d at 1112 n. 3 (finding standing when member’s affidavit stated, “My [recreational] activities and interests with respect to the Patapsco River have been adversely affected physically, aesthetically and emotionally by [the defendant’s] failure to comply with its NPDES permit and resulting [odorous and unsightly] illegal pollution.”).

Even assuming arguendo that FOE aiid CLEAN established that their members suffered injuries in fact, e.g. that the waterways in which Shealy and McCullough recreated and which Jones used were adversely affected, we conclude that FOE and CLEAN failed to establish that the alleged injuries in fact were fairly traceable to Gaston Copper’s conduct. In other words, FOE and CLEAN did not show that the waterways in which Shealy and McCullough recreated and which Jones used contained effluents of the type discharged by Gaston Copper, allegedly in violation of its March 1,1991 Permit.

“The requirement that plaintiffs injuries be ‘fairly traceable’ to the defendant’s conduct does not mean that plaintiffs must show to a scientific certainty that defendant’s effluent, and defendant’s effluent alone caused the precise harm suffered by the plaintiffs.” Watkins, 954 F.2d at 980 n. 7 (quoting Public Interest Research Group, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72 (3rd Cir.1990)). The fairly traceable requirement does, however, require the plaintiff to show that there is a “substantial likelihood” that the defendant’s conduct caused the plaintiffs harm. Watkins, 954 F.2d at 983; Powell Duffryn, 913 F.2d at 72. Three requirements are necessary to establish that there is a substantial likelihood that the defendant’s conduct caused the plaintiffs harm:

In a Clean Water Act case, this likelihood may be established by showing that a defendant had (1) discharged some pollutant in concentrations greater than allowed by its permit (2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant and that (3) this pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs.

Id. To meet these requirements, a plaintiff must show more than “a mere excee-dance of a permit limit.” Id.

In the present case, FOE and CLEAN failed to establish the second requirement of the substantial likelihood analysis: that Gaston Copper’s discharges were present in a waterway in which FOE and CLEAN’s members had an interest that is or may be adversely affected by the effluent. First, FOE and CLEAN did not present evidence that the allegedly affected waterways' — Shealy’s lake and portions of the Edisto River — contained effluents of the type that Gaston Copper discharges. Neither Gaston Copper’s laboratory toxicity tests, nor its 1993 and 1994 studies, was performed on Shealy’s lake or portions of the Edisto River. Second, while it is true that Lake Watson flows into the Boggy Branch, “a tributary of Bull Swamp Creek, which flows into the North Fork of the Edisto River,” (J.A. 70), the Edisto River is ten to fifteen miles from Gaston Copper, and Shealy’s lake is four miles downstream from Gaston Copper (with thirty-one intervening ponds and three other tributaries running into his lake). Consequently, even though water flows downstream, the distances between the source of the alleged pollution (Gaston Copper), and the waterways used by Shealy, Jones, and McCullough (Shealy’s lake and the Edisto River), is simply too great to infer causation.⁷ See Friends of Earth v. Crown Cent. Petroleum, 95 F.3d 358, 361-62 (5th Cir.1996) (concluding that because the source of discharge, eighteen miles and three tributaries from the allegedly affected waterways, was too far upstream from the waterways used by the plaintiffs to infer causation, the plaintiffs were required to establish the fairly traceable element of standing by producing water samples or expert testimony to establish “the presence of a pollutant of the type discharged by the defendant upstream”).⁸

In sum, even assuming that FOE and CLEAN established injury in fact, because FOE and CLEAN failed to establish that Gaston Copper’s discharges contributed to the alleged pollution that interferes with their members’ use of Shealy’s lake or the Edisto River, we conclude that FOE and CLEAN lack standing to pursue their citizens suit.⁹

Ill

One final word regarding the dissent. The dissent suggests our decision will unnecessarily create minitrials on the issue of standing. To the contrary, our opinion simply stands for the basic proposition that if a plaintiff organization craves standing, it must allege sufficient facts, which if proven, would entitle it to standing. Nothing more; nothing less. We have not raised the threshold for establishing standing; rather, we are simply requiring a plaintiff organization to allege sufficient facts demonstrating actual or imminent injury fairly traceable to the defendant’s conduct before standing attaches. In this case, FOE and CLEAN failed to meet this fairly low threshold.

In sum, because we hold that FOE and CLEAN lacked standing to pursue their CWA claims against Gaston Copper, we affirm the district court’s judgment dismissing FOE and CLEAN’s action for lack of jurisdiction.

AFFIRMED.

1 . The parlies stipulated that Lake Watson flows into the Boggy Branch, “a tributary of Bull Swamp Creek, which flows into the North Fork of the Edisto River.” (J.A. 70).

2 . According to Shealy, the source of his lake is Bull Swamp Creek and several other tributaries, including Boggy Branch, but there are thirty-one ponds between Bull Swamp Creek and his lake.

3 . Shealy admitted, however, that his lake had not been tested since the DHEC testing, performed in 1990. This action arises out of Gaston Copper's conduct since 1991.

4 . The members also testified that they relied on DHEC reports to know whether Gaston Copper was discharging effluents in violation of its March 1, 1991 Permit, and therefore were injured by Gaston Copper’s failure to monitor and report some of its effluent discharges, as required by the March 1, 1991 Permit.

5 .According to Dr. Bell, toxicity limits are the limits achievable with technology, and water quality limits are the limits of effluents that the permit holder may discharge into a waterway without violating EPA standards.

6 . In concluding that Shealy's legally protected interests were actually, or in imminent threat of being, injured, the dissent relies heavily on the fact that Gaston Copper is "fouling” Lake Watson in that some of Gaston Copper's laboratory toxicity tests showed that Gaston Copper's effluents from Lake Watson affected test organisms; DHEC stated that "runoff” from Gaston Copper reaches the Ed-isto River; and DHEC tested Shealy's lake prior to the time relevant to this action and found pollutants in his lake.

We fail to see how the evidence relied upon by the dissent demonstrates that Shealy's interests in his lake were actually, or in imminent threat of being, injured. The fact that Gaston Copper is "fouling” Lake Watson simply does not establish that Shealy's lake is actually, or in imminent threat of being, injured. This is true even though DHEC stated that "runoff” flowed from Boggy Branch to Bull Swamp Creek and into the Edisto River. DHEC's statement simply does not establish that pollutants actually reached, or will imminently reach, Shealy's lake. Further, the fact that DHEC tested Shealy’s lake in 1990 and found pollutants in the lake does not establish that Shealy’s interests in his lake were actually, or in imminent threat of being, injured. The dissent again relies on the stipulation that water flows from Boggy Branch to Bull Swamp Creek and into the Edisto River. However, no evidence was admitted that the pollutants found in Shealy's lake by DHEC in 1990 were traceable to Gaston Copper’s predecessor. Thus, the DHEC 1990 test does not suggest, nor let alone prove, that Gaston Copper's discharges after 1991 actually injured, or will imminently injure, Shealy's lake.

7 . We are not requiring that a plaintiff establish a certain mileage or tributary limit in order to satisfy the fairly traceable prong of standing. FOE and CLEAN's reliance on the proposition that water flows downstream is, however, simply insufficient to establish the fairly traceable element of standing.

8 . In concluding that Shealy established traceability, the dissent again relies on DHEC's statement that "runoff” from Gaston Copper reaches the Edisto River and the fact that DHEC tested Shealy’s lake prior to the time relevant to this action and found pollutants in his lake.

We fail to see how this evidence relied upon by the dissent demonstrates that there was a substantial likelihood that Gaston Copper’s conduct caused Shealy’s alleged injury. DHEC's statement simply does not establish that there was a substantial likelihood that pollutants traveled from Lake Watson into Boggy Branch into Bull Swamp Creek into thirty-one ponds and then into Shealy's lake. DHEC’s statement simply states the truism that water flows downstream. Further, the fact that DHEC tested Shealy's lake in 1990 and found pollutants in the lake does not establish that there was a substantial likelihood that Gaston Copper’s subsequent conduct caused Shealy's alleged injury. No evidence was admitted that the pollutants found in Shealy’s lake by DHEC in 1990 were traceable to Gaston Copper’s predecessor. Thus, the DHEC 1990 test does not establish that there was a substantial likelihood that Gaston Copper’s subsequent discharges after 1991 caused Shealy’s alleged harm.

9 . FOE and CLEAN contend that under Sierra Club v. Simkins Industries, Inc., 847 F.2d 1109 (4th Cir.1988), they have standing to bring a CWA claim for Gaston Copper’s alleged monitoring and reporting violations. We disagree. In Simkins, the plaintiff organization brought a CWA claim for monitoring and reporting violations, but did not bring a CWA claim for effluent discharge violations. See 847 F.2d at 1112. We concluded in Simkins that the plaintiff organization had standing to bring an action for the defendant's admitted monitoring and reporting violations because the plaintiff organization established that one of its members used the affected waterway, had a desire to protect the affected waterway that he used, and that these interests could be adversely affected by the defendant’s failure to monitor and report its effluent discharges. See id. at 1113. With regard to whether the plaintiff organization established that its desire to protect the affected waterway was adversely affected, we concluded that the plaintiff organization did indeed establish such. See id. (finding "information on any harmful level of pollutants in the area of [the defendant’s] plant during this time period is forever lost to ... those who might undertake to remedy the effects of any pollution" and the lack of information threatens the interests of the member, who attested that he used the affected waterway, in protecting the affected waterway and curtailing pollution into such waterway).

Unlike the plaintiff organization in Simkins, FOE and CLEAN failed to establish that their members recreated or used a waterway adversely affected or capable of being adversely affected by the defendant’s (Gaston Copper’s) conduct. As discussed supra, FOE and CLEAN failed to show that the Shealy's lake and the Edisto River contained effluents of the type Gaston Copper discharged. FOE and CLEAN also failed to submit expert testimony that the effluents discharged from Ga-ston Copper could adversely affect the waterways in which the members recreated or used. Accordingly, Simkins is of no help to FOE and CLEAN.