Baykeeper v. City of Sunnyvale

• Decision Date: 12 September 2022
• Docket Number: 5:20-cv-00824-EJD,5:20-cv-00826 EJD
• Parties: SAN FRANCISCO BAYKEEPER, Plaintiff, v. CITY OF SUNNYVALE, Defendant. SAN FRANCISCO BAYKEEPER, Plaintiff, v. CITY OF MOUNTAIN VIEW, Defendant.
• Court: U.S. District Court — Northern District of California

SAN FRANCISCO BAYKEEPER, Plaintiff,
v.
CITY OF SUNNYVALE, Defendant.

SAN FRANCISCO BAYKEEPER, Plaintiff,
v.
CITY OF MOUNTAIN VIEW, Defendant.

Nos. 5:20-cv-00824-EJD, 5:20-cv-00826 EJD

United States District Court, N.D. California, San Jose Division

September 12, 2022

ORDER GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT; DENYING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT; AND DENYING MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF RE: DKT. NOS. 81, 135

EDWARD J. DAVILA UNITED STATES DISTRICT JUDGE

Plaintiff San Francisco Baykeeper (“Plaintiff”) initiated suits against Defendants City of Sunnyvale (“Sunnyvale”) and City of Mountain View (“Mountain View”) under the citizen suit enforcement provisions of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (“Clean Water Act” or “CWA”), to address the allegedly unlawful discharge of bacteria pollution by these two Cities. Plaintiff moves for partial summary judgment as to the Second Cause of Action set forth in the First Amended Complaints For Declaratory and Injunctive Relief and Civil

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Penalties (“FACs”) against each Defendant. Pl.'s Mot. for Partial Summ. Judg. (“Mot.”), Dkt. No. 81. Specifically, Plaintiff requests a determination of liability for the discharges that occurred on January 17, 2019, February 4, 2019, and February 13, 2019. Defendants oppose Plaintiff's motion and cross-move for summary judgment. Defs.' Opp'n to Pl.'s Mot. for Summ. Judg. And Cross-Mot. for Summ. Judg. (“Opp'n”), Dkt. No. 91. Plaintiff filed a combined reply in support of its motion and opposition to Defendants' cross-motion (“Pl.'s Reply”), Dkt. No. 100, and Defendants filed a reply in support of their cross-motion (“Defs.' Reply”), Dkt. No. 106.^[1] Defendants thereafter filed a motion for leave to file a supplemental brief, Dkt. No. 135, to which Plaintiff objected, Dkt. No. 136, and Defendants replied, Dkt. No. 137. For the reasons stated below, Defendants' motion for leave to file a supplemental brief will be denied; Plaintiff's motion for partial summary judgment will be granted; and Defendants' cross-motion for summary judgment will be denied.

I.BACKGROUND

A. The CWA

Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). To achieve this goal, the CWA prohibits the “discharge of any pollutant” into navigable waters from any “point source” without a permit. Id. § 1311(a). The term “pollutant” means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. Id. § 1362(6). “Discharge of a pollutant” is defined to include “any addition of any pollutant to navigable waters from any point source.” Id. § 1362(12)(A). “[N]avigable waters” means “Waters of the United States” (“WOTUS”). 33 U.S.C. § 1362(7).

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A “point source” is any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. Id. § 1362(14). A municipal separate storm sewer system (“MS4”) is a “point source.” 40 C.F.R. § 122.26(b)(8).

The CWA requires municipalities like Defendants to acquire a National Pollution Discharge Elimination System (“NPDES”) permit for discharges from MS4s. See 33 U.S.C. § 1342(p)(2). Non-compliance with an NPDES permit constitutes a violation of the CWA. 40 C.F.R. § 122.41. Good faith, impossibility, ignorance, and de minimus discharges are no defense to a violation. See Sierra Club v. Union Oil Co., 813 F.2d 1480, 1491-92 (9th Cir. 1987), vacated, 485 U.S. 931 (1989), reinstated with minor amendment, 853 F.2d 667 (9th Cir. 1989) (rejecting “upset defense” and “de minimus” theory); Kelly v. United States EPA, 203 F.3d 519, 522 (7th Cir. 2000) (“nothing in the [CWA] makes good faith or a lack of knowledge a defense”); Am. Canoe Ass'n v. Murphy Farms, Inc., 412 F.3d 536, 540 (4th Cir. 2005) (“[I]t is plainly possible for those undertaking good-faith remediation . . . nevertheless ‘to be in violation' of the Act within the meaning of section 505(a), because the CWA creates a regime of strict liability for violations of its standards.”).

B. Defendants' MS4 Permit

Congress empowered the Environmental Protection Agency (“EPA”) Administrator to delegate NPDES permitting authority to state agencies. 22 U.S.C. § 1342(b). Pursuant to this authority, the EPA authorized the State of California to develop water quality standards and issue NPDES permits. Natural Resources Defense Council, Inc. v. County of Los Angeles, 725 F.3d 1194, 1198 (2013). The San Francisco Bay Regional Water Quality Control Board (“Regional Board”) is the state entity charged with issuing the federally-enforceable NPDES permit at issue in this case. Cal. Wat. Code §§ 13001, 13160, 13200(b), 13225. Pursuant to that authority, the

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Regional Board issued the current MS4 Permit to Defendants on November 19, 2015. See Pl.'s Req. for Judicial Notice (“Pl.'s RJN”), Dkt. No. 84-1, Ex. 16 (“MS4 Permit”).^[2]

The MS4 Permit includes a provision entitled “Receiving Water Limitations, B.2.” MS4 Permit at 5. The “Receiving Water Limitations B.2” prohibits discharges from Defendants' MS4s that cause or contribute to the violation of any applicable water quality standards (“WQS”) for receiving waters. Id. WQS are maximum permissible pollutant levels, expressed as numeric limits or in narrative terms, that are sufficiently stringent to protect public health and enhance water quality, consistent with the designated use(s) of the water. 33 U.S.C. § 1313(c)(2)(A).

C. Defendants' MS4 Discharges

Defendants are municipalities formed under the laws of the State of California. Pl.'s Reply To Defs.' Resp. To Pl.'s Separate Statement Of Undisputed Material Facts (“Reply PSS”), Dkt. No. 100-2, 13-14. Both are owners and operators of the public MS4 within their jurisdictions. Id. Every time it rains, Defendants' MS4s collect stormwater from the streets and other surfaces in the Cities and discharge it directly to local creeks. Reply PSS 17. Sunnyvale's MS4 discharges directly to Stevens Creek, Calabazas Creek, and the Sunnyvale East Channel. Reply PSS 15. The stormwater is not treated prior to discharge. Maharg Decl., Ex. 29 (Dep. Transcript of Michael Vasquez (“Vasquez Tr.”), 30:6-12), Ex. 30 (Dep. Tr. of Carrie Sandahl (“Sandahl Tr.”), 38:16-42:7).

Mountain View's MS4 discharges to Stevens Creek, which subsequently drains to South San Francisco Bay. Reply PSS 16. The stormwater that enters Mountain View's MS4 is not treated prior to discharge. Maharg Decl., Dkt. No. 83, Ex. 29 (Vasquez Tr., 30:6-12), Ex. 30 (Sandahl Tr., 38:16-42:7).

Stevens Creek, Calabazas Creek, and the Sunnyvale East Channel are “Receiving Waters” within the meaning of the MS4 Permit. The beneficial uses of Stevens Creek include water

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contact recreation (REC-1) and noncontact water recreation (REC-2), as well as wildlife habitat, cold and warm freshwater habitat, preservation of rare and endangered species, and fish spawning. RJN, Ex. 18 (Basin Plan, Tbl. 2-1). The beneficial uses of Calabazas Creek similarly include REC-1 and REC-2, as well as wildlife habitat and cold and warm freshwater habitat. Id. The beneficial uses of Sunnyvale East Channel also include REC-1 and REC-2, as well as wildlife habitat, preservation of rare and endangered species, and estuarine habitat. Id.; Reply RJN, Ex. 40 at 2-8 (“The beneficial uses of any specifically identified water body generally apply to all of its tributaries.”).

D. Plaintiff Baykeeper

Plaintiff is a California non-profit public benefit corporation with over 3,500 members who live and/or recreate in and around the San Francisco Bay Area. Reply PSS 1. Its mission is to protect San Francisco Bay from the biggest threats and hold polluters and government agencies accountable to create healthy communities and help wildlife thrive. Reply PSS 2. Baykeeper's members use and enjoy Stevens Creek, Calabazas Creek, Guadalupe Slough, South San Francisco Bay, and the nearby areas and waters. Reply PSS 4.

From November 2017 to February 2019, Plaintiff's staff scientist, Ian Wren (“Wren”), sampled for bacteria at several of Defendants' MS4 outfalls and within the surface waters into which the outfalls discharge. Reply PSS 26. Wren has over twenty years of experience with water quality sampling. Wren Decl., Dkt. 82, ¶¶ 5-10. According to Plaintiff, the sampling demonstrates that Defendants' stormwater discharges are contributing to exceedances of bacteria WQS, in violation of Receiving Water Limitation B.2. Reply PSS 29-122.

II.STANDARDS

A motion for summary judgment or partial summary judgment should be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The moving party bears the initial burden of informing the court of the basis for the motion and

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identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the issue is one on which the nonmoving party must bear the burden of proof at trial, the moving party need only point out an absence of evidence supporting the claim; it does not need to disprove its opponent's claim. Id. at 325.

If the moving party meets the initial burden, the burden then shifts to the non-moving party to go beyond the pleadings and designate...