Friends of Mariposa Creek et al v. Mariposa Public Utility District, No. 1:2015cv00583 - Document 51 (E.D. Cal. 2016)

Court Description: ORDER GRANTING plaintiffs' Motion for Partial Summary Judgment, document 37 . Order signed by Magistrate Judge Erica P. Grosjean on 4/19/2016. (Rooney, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 13 FRIENDS OF MARIPOSA CREEK, an unincorporated association, and SARAH WINDSOR, an individual, 14 Plaintiffs, 12 15 16 17 ORDER RE: PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT v. MARIPOSA PUBLIC UTILITIES DISTRICT, a public utility district, (ECF No. 37) Defendant. 18 19 Case No. 1:15-cv-00583-EPG I. INTRODUCTION 20 This is an action under the Clean Water Act alleging the discharge of pollutants by a water 21 treatment facility in violation of 33 U.S.C. § 1365. The facility, which is operated by Defendant 22 Mariposa Public Utilities District (the “District” or “Defendant”), is subject to various discharge 23 limitations listed in permits issued by the California Regional Water Quality Board, Central 24 25 Valley Region (the “Regional Water Board”). In particular, the permits limit the amount of dichlorobromomethane (“DCBM”) and copper the Facility can discharge. Plaintiffs allege that 26 Defendant has discharged DCBM and copper in excess of these limits. 27 28 1 Plaintiffs Friends of Mariposa Creek and Sarah Windsor (collectively, “Plaintiffs”) have 1 2 now moved for partial summary judgment on the issue of liability. Specifically, Plaintiffs 3 contend that the self-reported data submitted by the District to the California Water Resources 4 Control Board conclusively show that the District discharged pollutants above the limitations set 5 on it by the applicable National Pollutant Discharge Elimination System (“NPDES”) permits it 6 was operating under. Thus, Plaintiffs argue, Defendant violated the Clean Water Act. For the 7 reasons described below, this Court agrees and GRANTS Plaintiffs motion regarding liability. 8 II. 9 BACKGROUND A. Factual Background 10 This case revolves around the alleged discharge of pollutants by the District into Mariposa 11 Creek. The District owns and operates a wastewater treatment facility, located at 4956 Miller 12 Road, Mariposa, California (the “Facility”), which discharges wastewater containing DCBM and 13 copper into the Creek. The District monitors the contents of the discharge from a monitoring 14 location called “EFF-001” and self-reports its measurements to the State Water Resources 15 Control Board. 16 Plaintiff Friends of Mariposa Creek (“Friends”) is an organization of individuals who live 17 in close vicinity to the Facility. Plaintiff Sarah Windsor is a member of this organization and has 18 lived on property that borders Mariposa Creek approximately two miles downstream from the 19 Facility since 2001. Friends of Mariposa Creek has approximately 20 members (including 20 Windsor) who use Mariposa Creek for recreational and educational purposes, including fishing, 21 wildlife observation, photography, hiking, and aesthetic enjoyment on an ongoing basis. 22 During the period in question, the Regional Water Board issued two NPDES Permits to 23 regulate the pollutants discharged by the Facility. Consistent with the terms of the Permits, the 24 District is required to monitor and report on the amount of copper and DCBM in its discharges to 25 the State Water Board. Based on these self-reports, Plaintiffs allege that Defendant has been 26 discharging pollutants in excess of the limitations imposed on it by the NPDES permits. 27 \\\ 28 \\\ 2 1 B. Procedural Background 2 On April 15, 2015, Plaintiffs filed a Complaint alleging that Defendant had violated the 3 federal Clean Water Act on a number of occasions between December 2010 and February 2015. 4 (ECF No. 1.) On May 13, 2015, Defendant filed a Motion to Dismiss under Federal Rules of 5 Civil Procedure 12(b)(1) and (6). (ECF No. 6.) In that motion, Defendant contended that: (1) a 6 citizen suit under the Clean Water Act was precluded because the Regional Water Board was 7 already “diligently prosecuting an action” against Defendant because it had issued two Time 8 Scheduling Orders (“TSOs”) and an Administrative Civil Liability Complaint (the 9 “Administrative Complaint”) to Defendant; and (2) the limitations set forth in the NPDES Permits 10 were superseded by later (and more lenient) limitations set in the TSOs. Because Defendant had 11 complied with the limits set in the TSOs, which Defendant argued were the applicable limits 12 (rather than those set by the Permits), Defendant asserted that the Facility had not violated the 13 Clean Water Act. That motion was denied in its entirety on September 24, 2015. (ECF No. 22.) 14 In so doing, the Court found that, among other things, that: (1) the TSOs and the Administrative 15 Complaint did not constitute “diligent prosecution” under the Clean Water Act; and (2) the 16 limitations set in the TSOs did not supersede the final limitations set by the NPDES Permits. 17 Defendant then filed a second Motion to Dismiss under Federal Rule of Civil Procedure 18 12(b)(7) on October 8, 2015. (ECF No. 23.) In its second motion to dismiss, Defendant argued 19 that the Court had rendered the TSOs and Administrative Complaint invalid and that, as a result, 20 the Regional Water Board was an indispensable party to the litigation because it would need to 21 defend the validity of the TSOs and the Administrative Complaint. Because the Regional Water 22 Board enjoyed sovereign immunity, Defendant reasoned, such joinder was impossible and the 23 case must be dismissed. That motion was also denied in its entirety. (ECF No. 31.) Defendant 24 answered the Complaint on December 14, 2015. (ECF No. 32.) 25 On February 26, 2016, Plaintiffs filed a Motion for Partial Summary Judgment as to the 26 issue of liability. (ECF No. 37.) Plaintiffs ask the Court to determine, based on the undisputed 27 facts in the case, that the District has violated the Clean Water Act. Plaintiffs do not ask the 28 3 1 Court to determine the amount of penalties to be assessed, assuming such liability is found. 2 Plaintiffs attach the following evidence in support of their motion: 3 Declaration of Sarah Windsor (“Windsor Decl.”); 4 A photograph of Mariposa Creek; 5 Declaration of Douglas Chermak (“Chermak Decl.”); 6 Computer printout of data obtained from the State Water Quality Control Board s California Integrated Water Quality Program website; Copies of Defendant s Self-Monitoring Reports maintained by the Regional Water Board for June 2010 through November 2010; A copy of the NPDES Permit No. CA 0079430, State Board Order No. R5-2007-0171, issued on December 6, 2007 (the “2007 Permit”); and, A copy of the NPDES Permit No. CA 0079430, State Board Order No. R5-2014-0042, issued on March 28, 2014 (the “2014 Permit”). 7 8 9 10 11 12 13 On March 11, 2016, Defendant filed an Opposition to Plaintiffs Motion and attached the following evidence in support: 14 Declaration of Neal Constanzo (“Constanzo Decl.”); 15 Excerpts from the transcript of the deposition of Sarah Windsor; 16 A letter from the Friends of Mariposa Creek to Aide Ortiz of the Regional Water Board, dated February 16, 2014; Declaration of Mark Rowney, the General Manager of the District (“Rowney Decl.”); A topographical map of the town of Mariposa (and surrounding area); A copy of Time Scheduling Order No. R5-2011-0905, issued by the Regional Water Board and dated July 13, 2011 (the “2011 TSO”); A copy of the Notice of Violation, issued by the Regional Water Board on September 19, 2013; A letter from the District to the Regional Water Board, dated October 7, 2013; A copy of Administrative Civil Liability Complaint No. R5-2013-0590, issued by the Regional Water Board on December 30, 2013 (the “Administrative Complaint”); An unsigned copy of the Proposed Settlement Agreement and Stipulation for Entry of Administrative Civil Liability Order, dated March 2, 2016; A copy of Time Scheduling Order NO. R5-2014-0043, issued by the Regional Water Board and dated March 28, 2014 (the “2014 TSO”); 17 18 19 20 21 22 23 24 25 26 27 28 4 A copy of a Complaint Inspection Report (with cover letter) prepared by the Regional Water Board, dated April 14, 2011; and, 3 A copy of a Memorandum of Agreement between the United States Environmental Protection Agency and the California State Water Resources Control Board, dated September 22, 1989. 4 On March 18, 2016, Plaintiffs filed a Reply Brief in Support of the Motion and attached a 1 2 5 supplemental declaration by Douglas Chermak, along with three screenshots of the California 6 Integrated Water Quality System Project website. 7 After reviewing the papers submitted in support and opposition of the Motion, the Court 8 determined that this matter is suitable for decision without oral argument pursuant to Local Rule 9 230(g). Based on the pleadings and for the reasons set forth below, Plaintiffs Motion is 10 GRANTED. 11 III. LEGAL STANDARDS 12 A. Summary Judgment 13 Summary judgment is appropriate where “the movant shows that there is no genuine 14 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 15 Civ. P. 56(a). A genuine dispute exists if “the evidence is such that a reasonable jury could return 16 a verdict for the nonmoving party” and material facts are those “that might affect the outcome of 17 the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 18 “As the party with the burden of persuasion at trial, [Plaintiffs] must establish „beyond 19 controversy every essential element of ” their claims. S. Cal. Gas Co. v. City of Santa Ana, 336 20 F.3d 885, 888 (9th Cir. 2003). “Once the moving party meets its initial burden, the non-moving 21 party must „go beyond the pleadings and by her own affidavits, or by „the depositions, answers to 22 interrogatories, and admissions on file, designate „specific facts showing that there is a genuine 23 issue for trial. ” Burch v. Regents of Univ. of Cal., 433 F.Supp.2d 1110, 1125 (E.D. Cal. 2006), 24 quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “[T]he inferences to be drawn from 25 the underlying facts . . . must be viewed in the light most favorable to the party opposing the 26 motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 27 28 “A party opposing summary judgment must direct our attention to specific, triable facts.” S. Cal Gas Co., 336 F.3d at 889. The court “is not required to comb the record to find some 5 1 reason to deny a motion for summary judgment.” Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 2 1409, 1418 (9th Cir. 1988). “On a summary judgment motion, „the judge s function is not 3 himself to weigh the evidence and determine the truth of the matter but to determine whether 4 there is a genuine issue for trial. ” Id., quoting Liberty Lobby, Inc., 477 U.S. at 1413. 5 B. The Clean Water Act 6 As the Court previously explained in its order denying the District s first motion to 7 8 9 10 11 12 13 14 15 16 dismiss: The Clean Water Act “makes unlawful the discharge of any pollutant into navigable waters except as authorized by specified sections of the Act.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 52 (1987). To regulate these discharges, the Act empowers the Environmental Protection Agency to issue permits authorizing the release “of pollutants in accordance with specified conditions.” Id., citing 33 U.S.C. § 1342(a). Alternatively, states may administer their own permit programs, provided that those programs are run in accordance with federal guidelines. Id. If a permit is issued and the permit holder fails to abide by the conditions in the permit, the permit holder may find itself subject to an enforcement action by the applicable state agency. Such an enforcement action can include the possibility of “administrative, civil, and criminal sanctions.” Id. at 53, citing 33 U.S.C. § 1319. Should the agency fail to enforce the guidelines, “private citizens may commence civil actions against any person „alleged to be in violation of the conditions of either a federal or state NPDES permit.” Id., citing 33 U.S.C. § 1365(a)(1). A private citizen that prevails in an action under § 1365 may be entitled to “injunctive relief and/or civil penalties.” Id. (ECF No. 22.) 17 18 “[A] permittee violates the [Clean Water Act] when it discharges pollutants in excess of the levels specified in the permit, or where the permittee otherwise violates the permit s terms.” 19 NRDC v. Cnty. of Los Angeles, 725 F.3d 1194, 1204 (9th Cir. 2013), citing Russian River 20 Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1138 (9th Cir. 1998); 40 C.F.R. § 21 22 23 122.41(a) (“Any permit noncompliance constitutes a violation of the Clean Water Act and is grounds for enforcement action.”). A private citizen suit can be brought “against any person alleged to be in violation of federal pollution control requirements.” Ass’n to Protect 24 Hammersley, Eld, and Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007, 1012 (9th Cir. 25 2002). Permittees are strictly liable for violations of their permits under the Clean Water Act. 26 Santa Monica Baykeeper v. Kramer Metals, Inc., 619 F.Supp.2d 914, 919 (C.D. Cal. 2009), citing 27 Hawaii’s Thousand Friends v. City and Cnty. of Honolulu, 821 F.Supp. 1368, 1392 (D. Haw. 28 6 1 1993) (“Courts throughout the country have held that NPDES compliance is a matter of strict 2 liability, and a defendant s intent and good faith are irrelevant to the liability issue.”); Oregon 3 State Public Interest Research Group, Inc. v. Pacific Coast Seafoods Co., 361 F.Supp.2d 1232, 4 1240 (D. Or. 2005) (“The defendant s good faith or reference to data reporting errors is irrelevant 5 to establishing civil liability.”). Thus, to establish a violation of the Clean Water Act, “Plaintiffs 6 need only prove that Defendants violated the terms and conditions of their NPDES permit.” 7 Wishtoyo Found. v. Magic Mountain LLC, No. CV 12-05600 GAF (MANx), 2014 WL 6841554, 8 at *5 (C.D. Cal. Dec. 3, 2014). 9 IV. DISCUSSION 10 A. Plaintiffs Have Established Standing to Pursue Their Claims 11 As an initial matter, Defendant contends that Windsor and the Friends of Mariposa Creek 12 lack standing because the harm that Windsor alleges is solely conjectural and she has not 13 demonstrated actual environmental harm to Mariposa Creek. In particular, Defendant argues that 14 “[i]t is the reality of the threat of impending injury that is relevant to the standing inquiry, not 15 Plaintiff s subjective apprehensions,” that is required to demonstrate that Plaintiff has suffered a 16 remediable injury. (Memorandum of Points and Authorities in Opposition to Plaintiff s Motion 17 for Partial Summary Judgment (“Opposition Brief”) 15:1-2, ECF No. 43 (“Windsor never 18 explains how the pollution or effects of it in the creek that she claims to have observed is in any 19 way connected with Defendant s discharge of DCBM”).) A substantial part of its argument is 20 premised on the statements offered by Mark Rowney in his declaration, which argue that the 21 Facility s discharges have not made the creek toxic or brought it out of compliance with drinking 22 water standards. Put simply, the District asserts that Windsor must show a substantiated scientific 23 link between the discharge of a pollutant and “adverse health and environmental effects” in the 24 creek to demonstrate that she has standing. Id. at 14:10-28. 25 1. Plaintiff Sarah Windsor has standing. 26 To demonstrate standing, “a plaintiff must show (1) it has suffered an „injury in fact that 27 is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) 28 the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as 7 1 opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends 2 of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000). An “injury in fact” 3 is shown “if an individual adequately shows that she has an aesthetic or recreational interest in a 4 particular place, or animal, or plant species and that that interest is impaired by a defendant s 5 conduct.” Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000). 6 The Clean Water Act s “citizen suit provision extends standing to the outer boundaries set by the 7 „case or controversy requirement of Article III of the Constitution.” Id., citing Middlesex Cnty. 8 Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 16 (1981). Importantly, “[t]he relevant 9 showing for purposes of Article III standing . . . is not injury to the environment but injury to the 10 plaintiff.” Laidlaw, 528 U.S. at 181 (“To insist upon the former rather than the latter as part of 11 the standing inquiry . . . is to raise the standing hurdle higher than the necessary showing for 12 success on the merits in an action alleging noncompliance with an NPDES permit.”). 13 In Laidlaw, for instance, a plaintiff demonstrated standing by stating in an affidavit that 14 “she lived two miles from the facility; that before Laidlaw opened the facility, she picnicked, 15 walked, birdwatched, and waded in an along the North Tyger River because of the natural beauty 16 of the area; that she no longer engaged in these activities in or near the river because she was 17 concerned about harmful effects from discharged pollutants; and that she and her husband would 18 like to purchase a home near the river but did not intend to do so, in part because of Laidlaw s 19 discharges.” Id. at 182. A different plaintiff showed standing by submitting an affidavit that 20 stated “that he had canoed approximately 40 miles downstream of the Laidlaw facility and would 21 like to canoe in the North Tyger River closer to Laidlaw s discharge point, but did not do so 22 because was concerned that the water contained harmful pollutants.” Id. at 183. 23 Windsor has submitted a declaration attesting to facts establishing her standing under 24 penalty of perjury. She has stated that: (1) she lives on property adjoining Mariposa Creek; (2) 25 she uses Mariposa Creek for recreational and educational enjoyment, including photography, 26 hiking, wildlife observation, and swimming; (3) she is concerned about the Facility s discharge of 27 DCBM and copper into Mariposa Creek; and (4) she has reduced her use of Mariposa Creek 28 because of these discharges. (Windsor Decl. ¶¶ 10, 12, 13, ECF No. 39; Constanzo Decl., Exh. A 8 1 19:2-5, 21:2-22:4, ECF No. 42.) Windsor s concerns would be alleviated if the Facility stopped 2 its polluted discharges. Id. at ¶¶ 13, 14, 15. 3 Plaintiff has also demonstrated that the second and third requirements of standing are met. 4 Plaintiff Windsor lives downstream from the Facility and her enjoyment of the creek is 5 diminished because of the District s alleged violations of the Clean Water Act. Id. at ¶ 10. Thus, 6 the causation element is met. Ecological Rights Found., 230 F.3d at 1152. The Plaintiffs also ask 7 for injunctive relief, which establishes the redressability requirement of standing. Natural 8 Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985, 995 (9th Cir. 2000). 9 Windsor has thus demonstrated standing. 10 11 2. The Windsor declaration is admissible evidence. The District has objected to Windsor s statements in her declaration because the 12 declaration: (1) states conclusions for which Windsor lacks personal knowledge; (2) includes 13 evidence that constitutes hearsay; and (3) includes statements that are contradicted by Sarah 14 Windsor s deposition testimony. 15 The District objects to Windsor s statements on the basis that she lacks personal 16 knowledge. In particular, the District objects to Windsor s statements about the history, 17 composition, and activities of the Friends of Mariposa Creek. The District s objection is 18 overruled. “A witness may testify to a matter only if evidence is introduced sufficient to support 19 a finding that the witness has personal knowledge of the matter. Evidence to prove personal 20 knowledge may consist of the witness s own testimony.” Fed. R. Evid. 602. Windsor s 21 declaration states that she is a founding and current member of the Friends of Mariposa Creek. It 22 is well within her personal knowledge to testify to the history, composition, and activities of that 23 organization. Stuart v. UNUM Life Ins. Co. of Am., 217 F.3d 1145, 1155 (9th Cir. 2000) (holding 24 position as Director of Human Resources adequate to establish personal knowledge of employee 25 insurance plans); Edwards v. Toys “R” Us, 527 F.Supp.2d 1197, 1201 (C.D. Cal. 2007) 26 (“Personal knowledge can be inferred from a declarant s position within a company or business”), 27 citing In re Kaypro, 218 F.3d 1070, 1075 (9th Cir. 2000). 28 9 1 The District levels hearsay objections to Windsor s statements that: (1) the Friends of 2 Mariposa Creek delegated authority to her to initiate the present legal action; and (2) the Friends 3 of Mariposa Creek investigated and found that the District had failed to comply with the 2007 and 4 2014 Permits. But neither statement is offered for a hearsay purpose (i.e., for the truth of the 5 matter asserted); they are offered merely to explain Windsor s motivation to pursue a future 6 course of conduct (to initiate legal action in the first case and to investigate the source of 7 pollutants in the second case). See Fed. R. Evid. 801(c)(2); Suggs v. Stanley, 324 F.3d 672, 681 8 (8th Cir. 2003) (out of court statement not hearsay when offered to explain what prompted 9 listener s investigation). Nor, for that matter, are they necessarily statements at all—they appear 10 to be actions (i.e., the delegation of authority and the performance of an investigation). To the 11 extent these statements are relevant for this Motion, the District s objection is overruled. 12 Finally, the District objects to Windsor s statement that the Friends of Mariposa Creek 13 found that the District had “failed to comply with the terms of” of the 2007 and 2014 Permits 14 because Windsor stated at her deposition that she did not know whether the Permits set a limit as 15 to the amount of DCBM that could be discharged by the District. It is true that, in some cases, “a 16 party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony.” 17 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). However, this “sham 18 affidavit rule . . . does not automatically dispose of every case in which a contradictory affidavit 19 is introduced to explain portions of earlier deposition testimony.” Van Asdale v. Int’l Game 20 Tech., 577 F.3d 989, 998 (9th Cir. 2009). To justify the striking of an affidavit, “the 21 inconsistency between the party s deposition testimony and subsequent affidavit must be clear 22 and unambiguous.” Id. 23 The contradiction in this instance is not clear and unambiguous. Windsor initially 24 testified in deposition that she did not know whether the Permits set “a limit on the amount of 25 DCBM that can be included in what is discharged in to the creek.” (Constanzo Decl., Exh. A 26 38:19-23, ECF No. 42.) She clarified shortly thereafter, however, that she did know that there 27 were limits—she simply didn t know how to interpret those limits. Id. at 39:16-22 (“Q. So as I 28 understand you, ma am, you don t know one way or another whether or not there is any limitation 10 1 on the concentration of either copper or DCBM in any effluent discharge from the wastewater 2 treatment plant, do you? A. It s my understanding there are established limits. I m not a scientist. 3 I don t know how to interpret those limitations.”). The District s objection is overruled. 4 5 3. Plaintiffs need not show actual harm to show standing. Defendant does not offer any contrary evidence to show that Windsor has not suffered an 6 injury in fact. Rather, it contends that Windsor has not demonstrated that the pollutants 7 discharged by the Facility have caused actual harm to Mariposa Creek. In support of this 8 proposition, the District offers, in the form of the Rowney Decl., the suggestion that neither 9 DCBM nor copper would cause the harms of which Windsor complains. 10 But “the threshold question of citizen standing under the [Clean Water Act] is whether an 11 individual can show that she has been injured in her use of a particular area because of concerns 12 about violations of environmental laws, not whether the plaintiff can show there has been actual 13 environmental harm.” Ecological Rights Found., 230 F.3d at 1151 (emphasis in original). 14 Indeed, “harm to the environment need not ever be proved; the Clean Water Act allows citizen 15 suits based on violations of any conditions of an NPDES permit, even those which are purely 16 procedural.” Id. (“requiring a plaintiff to demonstrate actual environmental harm in order to 17 obtain standing would, in many Clean Water Act lawsuits, compel the plaintiff to prove more to 18 show standing than she would have to prove to succeed on the merits.”). 19 Furthermore, the case upon which the District relies to support its proposition that 20 Plaintiffs must demonstrate actual environmental degradation in fact states precisely the opposite. 21 In Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000), the 22 Fourth Circuit Court of Appeals considered a district court order that rejected a claim of standing 23 because plaintiffs had not presented evidence demonstrating: “(1) the chemical content of the 24 waterways affected by the defendant s facility; (2) any increase in the salinity of the waterways; 25 and (3) other negative change in the ecosystem of the waterway.” Id. at 159. The court rejected 26 that requirement, finding that it was inconsistent with Laidlaw. Id (“The Court required no 27 evidence of actual harm to the waterway.”). 28 11 1 Surveying the case law, the court also found that no circuit has “required additional 2 scientific proof where there was a direct nexus between the claimant and the area of 3 environmental impairment.” Id., citing Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. 4 Inc., 73 F.3d 546, 556 (5th Cir. 1996) (standing shown where “affiants expressed fear that the 5 discharge . . . will impair their enjoyment of these activities because these activities are dependent 6 upon good water quality”); U.S. v. Metro. St. Louis Sewer Dist., 883 F.2d 54, 56 (8th Cir. 1989) 7 (“Missouri Coalition and two of its named members allege that many of the 25,000 members 8 visit, cross, and frequently observe the bodies of water identified in the United States complaint 9 and that from time to time these members use these waters for recreational purposes. They also 10 allege that these interests are adversely affected by the pollution of these waters. These 11 allegations are sufficient to give the Coalition and its members constitutional standing”); Friends 12 of the Earth v. Consol. Rail Corp., 768 F.2d 57, 61 (2d Cir. 1985) (“Affiant Richard Endreny 13 averred that his children swim in the river, his son occasionally fishes in the river and his family 14 has and will continue to picnic along the river. These allegations are sufficient to show the injury 15 in fact required by Morton and SCM”). The court concluded that plaintiff did not need to show 16 “environmental degradation to show injury in fact”: 17 18 19 20 21 22 23 24 Threatened environmental injury is by nature probabilistic . . . [i]n this case, Gaston Copper s alleged permit violations threaten the waters within the acknowledged range of its discharge, including the lake on the Shealy s property. By producing evidence that Gaston Copper is polluting Shealy s nearby water source, CLEAN has shown an increased risk to its member s downstream uses. This threatened injury is sufficient to provide injury in fact. Shealy need not wait until his lake becomes barren and sterile or assumes an unpleasant color and smell before he can invoke the protections of the Clean Water Act. Such a novel demand would eliminate the claims of those who are directly threatened but not yet engulfed by an unlawful discharge. Article III does not bar such concrete disputes from court. Id. at 160. Thus, the District s contention that Windsor does not have standing to pursue this case is 25 incorrect. Rowney s statements that no environmental harm has occurred are immaterial to the 26 question of standing because no showing of environmental harm is required. At the point that 27 Windsor has demonstrated that she: (1) is in close geographical proximity to the creek; (2) enjoys 28 some aesthetic or recreational use of the creek; and (3) has curtailed those uses because of 12 1 concerns about the discharged pollutants, she has adequately stated a basis for standing. Laidlaw, 2 528 U.S. at 184 (“we see nothing „improbable about the proposition that a company s continuous 3 and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail 4 their recreational use of that waterway and would subject them to other economic and aesthetic 5 harms.”). Those three facts are undisputed based on the evidence presented to the Court. 6 Nor does the District s assertion that Windsor s deposition testimony contradicts her 7 declaration on this point hold up to scrutiny. While it is true that Windsor conceded that she did 8 not understand the particular mechanism of the effects that DCBM or copper have on overall 9 water quality, nothing suggests that a plaintiff needs to understand the chemical or biological 10 interactions occurring within a waterway to state standing under the Clean Water Act. In fact, 11 even Windsor s “mere subjective apprehensions,” which the District contends are not well- 12 founded, are enough to find standing. Ecological Rights Found., 230 F.3d at 1150 (“[a]esthetic 13 and environmental well-being, like economic well-being, are important ingredients of the quality 14 of life in our society. Yet, aesthetic perceptions are necessarily personal and subjective, and 15 different individuals who use the same area for recreational purposes may participate in widely 16 varying activities, according to different schedules. Laidlaw confirms that the constitutional law 17 of standing so recognizes, and does not prescribe any particular formula for establishing a 18 sufficiently „concrete and particularized aesthetic or recreational injury-in-fact.”). The mere fact 19 that Windsor cannot explain in a deposition the precise science linking the discharge of DCBM 20 and copper to environmental harm does not mean that she lacks standing to pursue a claim under 21 the Clean Water Act. 22 As explained above, Windsor has standing to pursue her Clean Water Act claims. 23 Because Windsor has standing, the Court need not consider the District s arguments with 24 response to the Friends of Mariposa Creek s standing. Watt v. Energy Action Educ. Found., 454 25 U.S. 151, 160 (1981), citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 26 252, 263-64 (1977) (finding that where one individual plaintiff had standing, the court “need not 27 consider whether the other individual and corporate plaintiffs have standing to maintain the suit”). 28 13 1 The Court finds that Plaintiffs have submitted undisputed evidence establishing standing to 2 pursue their claims. 3 B. The Scope of the NPDES Permits 4 As noted above, “a permittee violates the [Clean Water Act] when it discharges pollutants 5 in excess of the levels specified in the permit, or where the permittee otherwise violates the 6 permit s terms.” NRDC v. Cnty. of Los Angeles, 725 F.3d 1194, 1204 (9th Cir. 2013); 40 C.F.R. 7 § 122.41(a) (“Any permit noncompliance constitutes a violation of the Clean Water Act and is 8 grounds for enforcement action.”). Plaintiffs ask the Court to take judicial notice of two 9 documents maintained by the Regional Water Board: (1) Order No. R5-2007-0171 NPDES 10 Permit No. CA 0079430, issued on December 6, 2007 (the “2007 Permit”); and (2) Order No. R5- 11 2014-0042 NPDES Permit No. CA 0079430, issued on March 28, 2014 (the “2014 Permit”). 12 Defendant does not object to this request. Courts may take judicial notice of facts “not subject to 13 reasonable dispute” when they are either: “(1) generally known within the territorial jurisdiction 14 of the trial court or (2) capable of accurate and ready determination by resort to sources whose 15 accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. The Court takes judicial notice of 16 the requested documents. U.S. v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011) (courts 17 may “take judicial notice of „matters of public record ”). 18 19 The 2007 and 2014 Permits set forth the following final effluent limitations with respect to DCBM and copper: 20 Average Monthly Maximum Daily 21 2007 Permit 22 DCBM 0.6 µg/L 1.1 µg/L 23 Copper 6.1 µg/L 12.3 µg/L 24 2014 Permit 25 DCBM 0.56 µg/L 1.3 µg/L 26 Copper 6.8 µg/L N/A 27 1. Interpreting the Permits. 28 14 1 Defendant contends that additional discovery is required, pursuant to Federal Rule of Civil 2 Procedure 56(d), to determine what effluent limitations it was required to comply with. In 3 particular, Defendant argues that the language in the permits is ambiguous with respect to the 4 final effluent limitations and that extrinsic evidence in the form of the TSOs and the intent of the 5 parties should be admissible to explain the Permit limitations. 6 “[NPDES permit] terms are to be given their ordinary meaning, and when the terms of a 7 [permit] are clear, the intent of the parties must be ascertained from the [permit] itself.” NRDC v. 8 Cnty. of L.A., 725 F.3d 1194, 1205 (9th Cir. 2013) (interpreting NPDES permit issued to county 9 defendants), citing Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th 10 Cir. 1999) (“Contract terms are to be given their ordinary meaning, and when the terms of a 11 contract are clear, the intent of the parties must be ascertained from the contract itself. Whenever 12 possible, the plain language of the contract should be considered first.”). “The fact that the parties 13 dispute a contract s meaning does not establish that the contract is ambiguous; it is only 14 ambiguous if reasonable people could find its terms susceptible to more than one interpretation.” 15 Patterson, 204 F.3d at 1210. “ [A] court must give effect to every word or term in an NPDES 16 permit „and reject none as meaningless or surplusage. ” NRDC, 725 F.3d at 1206, quoting In re 17 Crystal Props., Ltd., L.P., 268 F.3d 743, 748 (9th Cir. 2001). 18 The plain language of the 2007 Permit, in relevant part, states that “[t]he discharge by the 19 Mariposa Public Utility District from the discharge point identified below is subject to waste 20 discharge requirements as set forth in this Order.” (Request for Judicial Notice, Exh. A, pg. 2, 21 ECF No. 38-1.) It then proceeds to explain that: “Except for interim periods when any of the 22 following parameters have an interim effluent limitation in effect (see subsection 2.a and 2.b, 23 below) the Discharger shall maintain compliance with the following effluent limitations.” Id. at 24 12. The referenced subsections then set forth a specific interim period (ending on May 17, 2010) 25 with specific interim limitations. None of the violations alleged by Plaintiffs fall within this 26 interim period and no blanket or open-ended reference is made to potential future “interim 27 periods.” The 2007 Permit then lays out the final effluent limitations as described above. 28 15 1 The 2014 Permit contains similar language. It begins by stating that “[t]he following 2 Discharger is subject to waste discharge requirements (WDRs) set forth in this Order.” (Request 3 for Judicial Notice, Exh. B, pg. 2, ECF No. 38-2.) It then explains that “[t]he Discharger shall 4 maintain compliance with the following effluent limitations at Discharge Point 001, with 5 compliance measured at Monitoring Location EFF-001 as described in the Monitoring and 6 Reporting Program, Attachment E.” Id. at 5. The 2014 Permit then sets out a table listing the 7 final effluent limitations as laid out in the above chart. 8 9 Neither of these Permits offer language that reasonable people could find susceptible to multiple interpretations. Both Permits explain that they are designed to set waste discharge 10 limitations on the Facility and give precise numerical values describing those limitations. They 11 both also use mandatory, rather than permissive language—the Facility “shall” comply with the 12 listed limitations—and only offer limited, specific carve out periods and circumstances under 13 which the Facility need not meet the final effluent limitations. The language of the Permits is 14 thus clear and unambiguous. 15 Likewise, the terms of the Permits explicitly reference and match up with similar language 16 in the Clean Water Act. They explain, for instance, that they are “issued pursuant to section 402 17 of the federal Clean Water Act” and each “shall serve as a NPDES permit for point source 18 discharges from this facility to surface waters.” (Request for Judicial Notice, Exh. A, pg. 5, ECF 19 No. 38-1; Exh. B, pg. 4, ECF No. 38-2.) The referenced section of the Clean Water Act explains 20 the parameters by which the EPA or a state agency may “issue a permit for the discharge of any 21 pollutant, or combination of pollutants.” 33 U.S.C. § 1342(a)(1). The relevant statutes thus 22 anticipate that the regulation of point source discharges will occur within an NPDES permit. 23 24 2. Interpreting the TSOs. Defendants contend that the TSOs should be read as part of the Permits and that the 25 interim effluent limitations within the TSOs thus superseded the final effluent limitations in the 26 Permits. The 2011 TSO, which was issued by the Regional Water Board on July 13, 2011, is 27 labeled: 28 TIME SCHEDULE ORDER R5-2011-0905 16 1 REQUIRING THE MARIPOSA PUBLIC UTITLIY DISTRICT WASTEWATER 2 TREATMENT FACILITY 3 MARIPOSA COUNTY 4 TO COMPLY WITH REQUIREMENTS PRESCRIBED IN ORDER R5-2007-0171 5 (NPDES PERMIT NO. CA0079430) 6 (Rowney Decl., Exh. B, pg. 6, ECF No. 45-1.) It cites California Water Code § 13300, which 7 states: Whenever a regional board finds that a discharge of waste is taking place or threatening to take place that violates or will violate requirements prescribed by the regional board, or the state board, or that the waste collection, treatment or disposal facilities of a discharger are approaching capacity, the board may require the discharger to submit for approval of the board, with such modifications as it may deem necessary, a detailed time schedule of specific actions the discharger shall take in order to correct or prevent a violation of requirements. 8 9 10 11 Id. 12 The 2011 TSO also explained that, under the California Water Code, the Regional Water 13 Board was required to impose minimum penalties when a discharger violates effluent limitations, 14 15 unless “the waste discharge is in compliance with either a cease and desist order . . . or a time schedule order.” Id. at 7. After noting that the Facility was not complying with the final effluent 16 limitations set forth in the 2007 Permit, the 2011 TSO determined that the District should be 17 18 required to prepare and implement a pollution prevention plan. It also laid out a set of “interim effluent limitations” that were more lenient than the final effluent limitations in the 2007 Permit. 19 Id. at 9. It explained that the intent of the interim effluent limitations was to assist the District in 20 setting a schedule to bring the Facility into compliance with the final effluent limitations: 21 22 23 24 25 26 The Discharger can, in addition to other treatment and control options, undertake source control to maintain compliance with the interim effluent limitations in this Order. Interim effluent limitations are established when compliance with the final effluent limitations cannot be achieved by the existing discharge. Discharge of constituents in concentrations in excess of the final effluent limitations, but in compliance with the interim effluent limitations, can significantly degrade water quality, and adversely affect the beneficial uses of the receiving stream on a longterm basis. The interim effluent limitations, however, establish an enforceable ceiling concentration until compliance with the final effluent limitations can be achieved. 27 Id. at 9; see also id. at 10 (“The Discharger shall comply with the following time schedule to 28 ensure compliance with the final effluent limitations for dichlorobromomethane.”). The TSO 17 1 concluded that “[i]ssuance of this Order does not preclude the Central Valley Water Board from 2 taking additional enforcement actions against the Discharger.” Id. at 11. 3 The 2014 TSO, which was issued on March 28, 2014, uses similar language. It explains 4 that its purpose is to “provide[ ] time schedules for completing the actions necessary to ensure 5 compliance with the final effluent limitations.” (Rowney Decl., Exh. G, pg. 26, ECF No. 45-2.) 6 It again set interim effluent limitations that were more lenient than the final effluent limitations in 7 the 2014 Permit. And it explained that the interim effluent limitations were intended to help bring 8 the Facility into compliance with the final effluent limitations: 9 10 11 12 13 The Central Valley Water Board finds that the Discharger can maintain compliance with the interim effluent limitations included in this Order. Interim effluent limitations are established when compliance with the final effluent limitations cannot be achieved by the existing Facility. Discharge of constituents in concentrations in excess of the final effluent limitations, but in compliance with the interim effluent limitations, can significantly degrade water quality and adversely affect the beneficial uses of the receiving stream on a long-term basis. The interim effluent limitations, however, establish an enforceable ceiling concentration until compliance with the final effluent limitations can be achieved. 14 Id. at 26. Like the 2011 TSO, the 2014 TSO also reserved the right of the Regional 15 Water Board to take enforcement action for violation of the final effluent limitations. 16 Nothing in the TSOs indicate that they were intended to supplant or replace the 17 Permits or the final effluent limitations indicated in the Permits. Rather, the TSOs make 18 clear that the interim effluent limitations are merely setting a compliance schedule to 19 bring the Facility into compliance with the final effluent limitations. The TSOs also 20 discuss the fact that the implementation of the TSOs freed the Regional Water Board 21 from a mandatory obligation to impose penalties for the Facility s violations. Nothing in 22 the plain language of these documents indicates that they are permits. On the contrary, 23 they repeatedly refer in a distinguishing way to the final limitations in the actual permits. 24 Further discovery is not necessary to ascertain the objective intent of the Regional Water 25 Board in light of the unambiguous language. 26 Binding case law supports this interpretation. In Citizens for a Better 27 Environment—California v. Union Oil Company of California, 83 F.3d 1111 (9th Cir. 28 1996), for example, defendant entered into a settlement agreement which included a 18 1 consent order. The consent order included a term that relieved defendant from meeting a 2 discharge limitation in its NPDES permit until a date later than the date set by the permit. 3 In the ensuing citizen suit, defendant argued that the consent order had the effect of 4 modifying the compliance date set by the permit. The court concluded that the order did 5 not modify the permit. Id. at 1119 (“The Court further concludes that the CDO at issue 6 did not modify, effectively or otherwise, the terms of UNOCAL s NPDES permit.”). 7 As in the present case, the express terms of the consent order there indicated that 8 the Water Board “did not intend to modify the Permit but instead worked out a 9 compliance schedule” with which defendant could comply. Id. at 1120. The Ninth 10 Circuit held that such a schedule was a mere “exercise of prosecutorial discretion” by 11 which the Water Board elected not to pursue actual violations of the permit because the 12 consent order reserved the right to “pursue appropriate action against the dischargers.” 13 Id. Specifically, the consent order said that if “the dischargers have failed to comply with 14 the provisions of this Order [the official may] . . . request the Attorney General to take 15 appropriate action against the dischargers, including injunctive and civil remedies, if 16 appropriate, or to issue a complaint for Board consideration of Administrative Civil 17 Liabilities.” Id. 18 The Court thus concludes that the TSOs are not permits as meant by the Clean 19 Water Act and did not amend or modify the final effluent limitations listed in the 2007 20 and 2014 Permits. Riverkeeper, Inc. v. Mirant Lovett, LLC, 675 F.Supp.2d 337, 345 21 (S.D.N.Y. 2009) (“Settlements that merely provide for selective non-enforcement of 22 permits by a state regulatory agency, without more, do not bar citizen suits under the 23 CWA seeking enforcement of the terms of such permits.”); Frilling v. Village of Anna, 24 924 F.Supp. 821, 844 (S.D. Ohio 1996) (“This Court is simply not authorized to defer to 25 the State s discretion in certain, select cases by denying citizens their right to enforce 26 NPDES permit limitations where the government has failed to do so . . . the Consent 27 Order entered into by the parties did not suspend the legal effect of the NPDES 28 limitations.”). 19 1 The Court finds that the undisputed facts establish that the 2007 and 2014 Permits 2 provided the above final effluent limitations and that Defendant was required to comply 3 with those limitations. 4 C. Defendant Discharged Pollutants in Excess of the Final Effluent Limitations 5 As explained above, “a permittee violates the [Clean Water Act] when it discharges 6 pollutants in excess of the levels specified in the permit, or where the permittee otherwise violates 7 the permit s terms.” NRDC v. Cnty. of Los Angeles, 725 F.3d 1194, 1204 (9th Cir. 2013); 40 8 C.F.R. § 122.41(a) (“Any permit noncompliance constitutes a violation of the Clean Water Act 9 and is grounds for enforcement action.”). “A monitoring report that shows a water sample with 10 pollutant discharges in excess of permit limits is conclusive evidence of a violation.” San 11 Francisco Baykeeper v. West Bay Sanitary Dist., 791 F.Supp.2d 719, 755 (N.D. Cal. 2011), 12 quoting Inland Empire Waterkeeper v. Uniweb, Inc., No. ED CV 07-00480 DDP (FMOx), 2008 13 WL 6098645, at *26 (C.D. Cal. Aug. 6, 2008). 14 The District submitted such reports and the results of those reports are summarized by 15 Plaintiff in the Chermak Declaration. The District did not file separate objections to the Chermak 16 Declaration. In its response to Plaintiff s Statement of Undisputed Facts, however, the District 17 objects to the summary of the reports, asserting that it is not properly authenticated and 18 constitutes hearsay evidence. 19 In general, “[e]vidence describing a process or system used to produce a result and 20 showing that process or system produces an accurate result” is an appropriate way to authenticate 21 a printout of computer data. Fed. R. Evid. 901(b)(9); U-Haul Int’l, Inc. v. Lumbermens Mut. Cas. 22 Co., 576 F.3d 1040, 1045 (9th Cir. 2009) (system user testimony as to “the process of inputting 23 data into the computer and the process of querying the computer to compile the information to 24 create the summaries” adequate to authenticate records). The Chermak Decl. accomplishes this 25 task by explaining: (1) how the information is submitted to the computerized system; and, (2) the 26 specific steps the declarant went through to obtain the information from the system. 27 28 Nor does the chart constitute inadmissible hearsay evidence. “A record or statement of a public office” is admissible hearsay if it sets out “a matter observed while under a legal duty to 20 1 report” and “the opponent does not show that the source of information or other circumstances 2 indicate a lack of trustworthiness.” Fed. R. Evid. 803(8). As the Chermak Decl. explains, the 3 information contained in the chart was reported pursuant to the legal requirements imposed by the 4 2007 and 2014 Permits and the District does not lay out any basis to suspect the document s 5 trustworthiness. The chart is thus admissible and the objection is overruled.1 6 Where the District s reports indicate discharges in excess of the limitations provided in the 7 2007 or 2014 Permits (as applicable), the evidence establishes a violation of the Clean Water Act. 8 Defendant has not submitted any evidence to counter Plaintiff s evidence of its discharges and 9 there no dispute that the level of pollutants discharged by Plaintiff exceeded the final effluent 10 limitations provided by the Permits. 11 Defendant again contends that the interim effluent limitations provided in the TSOs 12 should be the governing limitations. Thus, it argues, it is not liable because it was in compliance 13 with the interim effluent limitations, even if it was not in compliance with the final effluent 14 limitations. As discussed above, however, the 2007 and 2014 Permits establish the standards by 15 which Defendant s conduct must be measured. Citizens for a Better Environment—California v. 16 Union Oil Company of California, 83 F.3d 1111, 1120 (9th Cir. 1996); Riverkeeper, Inc. v. 17 Mirant Lovett, LLC, 675 F.Supp.2d 337, 345 (S.D.N.Y. 2009); Frilling v. Village of Anna, 924 18 F.Supp. 821, 844 (S.D. Ohio 1996). Based on the evidence in the record, Plaintiffs have shown 19 that there is no material dispute of fact that Defendant has discharged pollutants beyond the 20 amounts allowed in the 2007 and 2014 Permits.2 21 Plaintiffs also request that the Court make a specific finding as to the number of violations 22 for which the District is liable. Typically, “a violation of a monthly average will be counted as a 23 violation of every day of the month.” Sierra Club v. City & Cnty. of Honolulu, 486 F.Supp.2d 24 1 25 26 27 28 And, in any event, the Court must focus on the admissibility of a document s contents, rather than its form, at the summary judgment stage. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003). In other words, a statement or document that constitutes hearsay, as submitted, may be considered at summary judgment if the information it contains could be introduced at trial in a non-hearsay form (through witness testimony, for example). 2 The Court notes, however, that “any good-faith efforts to comply with the applicable requirements,” even if those efforts were erroneously based on the interim effluent limitations, rather than the final effluent limitations, may be a mitigating factor in determining the amount of the civil penalty to be imposed. While the TSOs do not introduce a material dispute of fact into the question of liability, therefore, they, along with other facts raised by Defendant in opposition to this Motion, may be relevant in the penalty phase of this litigation. 33 U.S.C. § 1319(d). 21 1 1185, 1190-1191 (D. Haw. 2007). Plaintiffs argue that there have been a total of 2,219 violations 2 by the District. (Motion 14:24-15:1, ECF No. 37-1.) This number was reached by adding the 3 following figures: Number of days in months the District exceeded average monthly effluent limitation for DCBM in the 2007 Permit 4 5 6 7 8 9 10 11 12 13 14 15 16 1,308 Number of days in months the District exceeded average monthly effluent limitation for DCBM in the 2014 Permit 640 Number of days the District exceeded the daily maximum limitation for DCBM in the 2007 Permit 39 Number of days the District exceeded the daily maximum limitation for DCBM in the 2014 Permit 21 Number of days in months the District exceeded average monthly effluent limitation for total recoverable copper in the 2007 Permit 1823 Number of days in months the District exceeded average monthly effluent limitation for total recoverable copper in the 2014 Permit 28 Total number of violations 2,218 17 The Court has verified these numbers and finds, based on the undisputed facts of this 18 case, that the District is liable for 2,218 separate violations of its obligations under the 2007 and 19 2014 Permits (and thus, the Clean Water Act). 20 D. The Regional Water Board’s Actions Do Not Strip the Court of Jurisdiction 21 Finally, the District argues that the Regional Water Board has recently provided notice of 22 a proposed settlement agreement that would cover some of the violations that Plaintiffs allege. 23 This appears to be a renewal of the argument Defendant made in its first motion to dismiss (ECF 24 No. 6), asserting that that the Court lacks subject matter jurisdiction to adjudicate a citizen suit 25 under the Clean Water Act because the Regional Water Board is diligently prosecuting an action 26 27 28 3 Plaintiffs assert in their briefing that there should be 183 violations in this category. (Motion 14:11-12, ECF No. 37-1.) That number assumes that February 2013 had 29 days. February 2013 had, in fact, only 28 days. Plaintiffs do not appear to have made a similar error in calculating the DCBM violations. 22 1 against the District for some of the same violations. The Court previously rejected this argument 2 in its order denying the first motion to dismiss. (ECF No. 22.) The Court then declined to revisit 3 that decision in its order denying the second motion to dismiss. (ECF No. 31.) Defendant 4 believes that the outcome of this argument is different this time, however, because the Regional 5 Water Board has now proposed a settlement agreement with the District. The agreement, if 6 executed by both parties and pending a 30 day public comment period, would impose $93,000 in 7 penalties, but would allow the District to pay those penalties by spending that amount towards an 8 assigned compliance project. (Rowney Decl., Exh. F., ¶ 5, ECF No. 45-2 (“In lieu of assessing 9 all of the [penalties], the Parties agree to allow the Discharger to spend an equivalent amount 10 towards the successful completion of a Compliance Project”).) 11 Nothing about these facts alters the Court s previous analysis. Citizens for a Better 12 Environment-California v. Union Oil Co. of California, 83 F.3d 1111, 1116 (9th Cir. 1996) 13 (settlement payments made in the context of “a settlement made to avoid an enforcement action 14 by the Regional Board” not construed as “diligent prosecution”); Wash. Pub. Interest Research 15 Group v. Pendleton Woolen Mills, 11 F.3d 883 (9th Cir. 1993) (order requiring discharger to 16 make physical improvements or face sanctions not diligent prosecution); N. Cal. River Watch v. 17 Sonoma Cnty. Water Agency, No. C 97-4263 CRB, 1998 WL 886645, at *3 (N.D. Cal. Dec. 16, 18 1998) (“a settlement agreement or a cease and desist order issued by the state is not sufficient to 19 constitute diligent prosecution under a comparable state law.”). Moreover, the bar for diligent 20 prosecution “is assessed at the time the citizen-suit complaint is filed,” it is not continuously re- 21 evaluated over the course of the case. Cal. Sportfishing Prot. Alliance v. Chico Scrap Metal, Inc., 22 728 F.3d 868, 877 (9th Cir. 2013), citing Knee Deep Cattle Co., Inc. v. Bindana Inv. Co. Ltd., 94 23 F.3d 514, 516 (9th Cir. 1996). As discussed in the Court s order on the second motion to dismiss 24 (ECF No. 31), the settlement agreement may impact the amount of penalties assessed in this 25 litigation. It does not, however, create a triable issue of material fact with respect to liability. 26 /// 27 /// 28 /// 23 1 2 V. ORDER For the reasons set forth above, Plaintiffs Motion for Partial Summary Judgment (ECF 3 No. 37) is GRANTED. The remaining issue in this case is the assessment of civil penalties in 4 accordance with 33 U.S.C. § 1319(d). 5 6 7 8 IT IS SO ORDERED. Dated: April 19, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24

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