Committee To Save Mokelumne River v. East Bay Mun. Utility Dist.

• Decision Date: 29 December 1993
• Docket Number: No. 93-15999,93-15999
• Citation: 13 F.3d 305
• Parties: 24 Envtl. L. Rep. 20,225 COMMITTEE TO SAVE MOKELUMNE RIVER, a California non-profit corporation, Plaintiff-Appellee, v. EAST BAY MUNICIPAL UTILITY DISTRICT, a California Municipal Utility District, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 305

13 F.3d 305

24 Envtl. L. Rep. 20,225

COMMITTEE TO SAVE MOKELUMNE RIVER, a California non-profit corporation, Plaintiff-Appellee, v. EAST BAY MUNICIPAL UTILITY DISTRICT, a California Municipal Utility District, et al., Defendants-Appellants.

No. 93-15999.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 1, 1993.

Decided Dec. 29, 1993.

Edward Berlin, Swidler & Berlin, Washington, DC, for defendant-appellant East Bay Mun. Utility Dist.

Sara J. Drake, Deputy Atty. Gen., Atty. General's Office, Sacramento, CA, for defendant-appellant California Water Quality Control Bd. Members, Central Valley Region.

Adria Y. LaRose, William S. Curtiss, Sierra Club Legal Defense Fund, Inc., Maria Savasta Kennedy, Michael W. Bien, Rosen, Bien & Asaro, San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before: REAVLEY, ^* PREGERSON, and FERNANDEZ, Circuit Judges.

PREGERSON, Circuit Judge:

The East Bay Municipal Utility District and the members of the California Regional Water Quality Control Board, Central Valley Region, defendants below, appeal the district court's order granting partial summary judgment in favor of the Committee to Save the Mokelumne River. The district court, in a well-written, well-reasoned opinion, found that defendants owned and operated the Penn Mine facility, and that the facility discharged pollutants into the Camanche Reservoir and Mokelumne River without a permit, in violation of the Clean Water Act, 33 U.S.C. Secs. 1251-1376. On appeal, defendants contend that (1) Mine Run Dam, part of the Penn Mine facility, is not subject to the discharge permit requirements of the Clean Water Act; (2) the Water Board is immune from liability under the Act; and (3) summary judgment was improper because a triable issue of material fact exists whether there has been an "addition of pollutants" within the meaning of the Clean Water Act.

We have jurisdiction under 28 U.S.C. Sec. 1292(b). We affirm.

BACKGROUND

The Penn Mine property is the site of an abandoned copper and zinc mine that operated intermittently from the 1860s through the 1950s. The companies that mined the site left behind reactive mine tailings, waste rock, and excavated ores. When exposed to oxygen and water, these materials form "acid mine drainage," which contains high concentrations of aluminum, cadmium, copper, zinc, iron, and sulfuric acid. Unless impeded, rain water falling on the site carries this acid mine drainage downhill, in the form of surface runoff, into the Mokelumne River.

In the 1960s, the East Bay Municipal Utility District (the "District") acquired a portion of the Penn Mine property to build the Camanche Reservoir. The District owns water rights on the Mokelumne and supplies water to towns and cities east of San Francisco. In 1978, the District, joined by the California Regional Water Quality Control Board, Central Valley Region (the "Board"), constructed the Penn Mine Facility (the "facility") in an attempt to reduce the threat of continued toxic runoff from the site. The facility consists of Mine Run Dam and the Mine Run Dam Reservoir surface impoundment, along The facility was designed to capture contaminated surface water flowing through the site, and to contain and evaporate the water through a ponding and recirculation system, preventing the contamination from reaching the reservoir and river below. Each of the two drainages once occupied by Hinkley Run and Mine Run creeks, which formerly flowed through the site, now contains a cascade of three impoundments. Water contaminated with toxic pollutants runs off the mine site and collects in the upper impoundments and then flows to the lower impoundments, eventually collecting in the Mine Run Dam Reservoir. A pump and pipe owned by the Board recirculates polluted water from Mine Run Dam Reservoir back into the upper impoundments located in the former Mine Run Creek drainage basin. Defendants operate that pump.

with a series of other impoundments, drainage ditches, pipes, valves, culverts, and channels. The Mine Run Dam and most of the Mine Run Dam Reservoir are located on property owned by the District. A small portion of the Mine Run Dam Reservoir extends onto property owned by a defunct mining company.

The facility also consists of two principal diversion ditches that divert the surface flows of Hinkley Run and Mine Run creeks around the abandoned mine site. Those diversion ditches are intended to isolate the facility from the unpolluted flows of these two creeks by diverting the streams around the facility and directly into the Mokelumne River and Camanche Reservoir, below.

As part of the facility's ongoing operation, various pipes, channels, and gullies carry polluted runoff from the mine tailings and dikes into the Mine Run Dam Reservoir and other facility impoundments. In addition, from time to time, water and drainage collected in the Mine Run Dam Reservoir have passed over the spillway or through the dam's discharge valve into the Mokelumne River and Camanche Reservoir.

The Clean Water Act (the "Act"), 33 U.S.C. Secs. 1251-1376, is intended to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. Sec. 1251(a). In pursuit of this goal, the Act prohibits the "discharge of any pollutant" into navigable waters from any "point source" without a permit. See 33 U.S.C. Sec. 1311(a) (except as otherwise provided in the Act, the discharge of any pollutant by any person shall by unlawful); Sec. 1342(a) (authorizes EPA Administrator to permit some discharges of pollutants under a National Pollutant Discharge Elimination System ("NPDES")); Sec. 1362(12) (defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source").

The Committee to Save the Mokelumne River (the "Committee") initiated this suit against the District and members of the Board under the citizen suit provisions of the Act, 33 U.S.C. Sec. 1365. The Committee seeks a judgment declaring that defendants have discharged pollutants from the Penn Mine facility without a permit, in violation of the Clean Water Act, and enjoining defendants from discharging pollutants from the facility until they have obtained an NPDES permit to do so. The Committee also seeks an order requiring defendants to devise a remedial plan to remove and dispose of contaminated sediment in the reservoir.

Defendants moved to dismiss this action on a number of procedural and substantive grounds. At the same time, the Committee moved for summary judgment on the issue of defendants' liability under the Act. The district court denied defendants' motion and granted judgment in favor of the Committee on the issue of liability.

On appeal from the district court's order of summary judgment in favor of the Committee, defendants raise four issues. They contend that the district court erred in granting partial summary judgment in favor of the Committee because (1) Mine Run Dam is not subject to the discharge permit requirements of the Clean Water Act; (2) a material issue of fact exists as to whether defendants have "discharged a pollutant" within the meaning of the Act; (3) defendants' activities in constructing and operating the facility are regulatory, and therefore cannot constitute "additions of pollutants" under the Act; (4) the Eleventh Amendment immunizes defendants

from liability under the Clean Water Act. We address each of these arguments in turn.

DISCUSSION

A. Is Mine Run Dam subject to the Clean Water Act's permit requirements?

To establish a violation of the Act's NPDES requirements, a plaintiff must prove that defendants (1) discharged, i.e., added (2) a pollutant (3) to navigable waters (4) from (5) a point source. National Wildlife Federation v. Gorsuch, 693 F.2d 156, 165 (D.C.Cir.1982). Defendants concede that acid mine drainage is a "pollutant," that the Mokelumne River is among the covered "navigable waters," and that the spillway and valve of the Mine Run Dam and Reservoir are "point sources" ¹ from which polluted water has entered the Mokelumne River. They contest only the issue whether they have "added" pollutants to the Mokelumne.

Defendants argue that under well-established case law, the Mine Run Dam is not subject to the Clean Water Act's permit requirements because it is a dam that "does no more than impound navigable waters and impede their flow in the Mokelumne River." In support of this contention, defendants rely on two decisions that held that the specific dams at issue in those cases were not subject to the discharge permit requirements because they did not "discharge pollutants," i.e., " 'add' pollutants from the outside world to" navigable water. See National Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 584 (6th Cir.1988); Gorsuch, 693 F.2d at 174-75. These cases are inapposite here because the Penn Mine facility does "discharge pollutants" as that term is defined by the Act and relevant regulations.

In both Consumers Power Co. and Gorsuch, plaintiffs sought to compel dam operators to comply with the discharge permit requirements of the Clean Water Act. In Gorsuch, plaintiffs argued that dam-induced water quality changes caused by the impoundment and release of water were a "discharge of pollutants" within the meaning of the Act. ² 693 F.2d at 161. Plaintiffs in Consumers Power Co. argued that the destruction of aquatic life by a dam's turbines and the release downstream of the remains were a "discharge of pollutants" within the meaning of Act. In both cases, the court held that the dams at issue did not "discharge a pollutant" because the dams did not add pollutants "from the outside world." Consumers Power Co., 862 F.2d at 584; Gorsuch, 693 F.2d at 174-75. Neither case categorically exempts all dams from the discharge permit requirements of the Clean Water Act.

This case clearly is...