Natural Res. Def. Council, Inc. v. Cnty. of Los Angeles, No. 10–56017.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtM. SMITH
Citation11 Cal. Daily Op. Serv. 8752,2011 Daily Journal D.A.R. 10555,673 F.3d 880
Docket NumberNo. 10–56017.
Decision Date13 July 2011
PartiesNATURAL RESOURCES DEFENSE COUNCIL, INC.; Santa Monica Baykeeper, Plaintiffs–Appellants, v. COUNTY OF LOS ANGELES; Los Angeles County Flood Control District; Michael Antonovich, in his official capacity as Supervisor; Yvonne Burke, in her official capacity as Supervisor; Gloria Molina, in her official capacity as Supervisor; Zev Yaroslavsky, in his official capacity as Supervisor; Dean D. Efstathiou, in his official capacity as Acting Director of Los Angeles County Department of Public Works; Don Knabe, in his official capacity as Supervisor, Defendants–Appellees.

11 Cal. Daily Op. Serv. 8752
2011 Daily Journal D.A.R. 10,555
673 F.3d 880

NATURAL RESOURCES DEFENSE COUNCIL, INC.; Santa Monica Baykeeper, Plaintiffs–Appellants,
v.
COUNTY OF LOS ANGELES; Los Angeles County Flood Control District; Michael Antonovich, in his official capacity as Supervisor; Yvonne Burke, in her official capacity as Supervisor; Gloria Molina, in her official capacity as Supervisor; Zev Yaroslavsky, in his official capacity as Supervisor; Dean D. Efstathiou, in his official capacity as Acting Director of Los Angeles County Department of Public Works; Don Knabe, in his official capacity as Supervisor, Defendants–Appellees.

No. 10–56017.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 10, 2010.Filed July 13, 2011.


[673 F.3d 882]

Aaron Colangelo, Natural Resources Defense Council, Washington, D.C.; Daniel Cooper, Lawyers for Clean Water, San Francisco, CA, for plaintiffs-appellants Natural Resources Defense Council, Inc. and Santa Monica Baykeeper.

Andrea Sheridan Ordin, Judith A. Fries, Laurie Dods, Los Angeles County Department of County Counsel, Los Angeles, CA, Howard Gest, David W. Burhenn, Burhenn & Gest LLP, Los Angeles, CA, for defendants-appellees County of Los Angeles, et al.

Gregory Thomas Broderick, Downey Brand, LLP, Sacramento, CA, for amicus curiae California State Association of Counties.Theresa Ann Dunham, Somach Simmons & Dunn, Sacramento, CA, for amicus curiae California Stormwater Quality Association.Kamala D. Harris, Attorney General of California; Kathleen A. Kenealy, Senior Assistant Attorney General; James R. Potter, Jennifer Novak, Deputy Attorneys General, Office of the California Attorney General, Los Angeles, CA, for amicus curiae California Regional Water Quality Control Board, Los Angeles Region.Appeal from the United States District Court for the Central District of California, A. Howard Matz, District Judge, Presiding. D.C. No. 2:08–cv–01467–AHM–PLA.Before: HARRY PREGERSON, and MILAN D. SMITH, JR., Circuit Judges, and H. RUSSEL HOLLAND, Senior District Judge.*
ORDER

This Court's Opinion, filed March 10, 2011, and published at 636 F.3d 1235 (9th Cir.2011), is withdrawn and replaced by the attached Opinion.

With this filing, the panel has voted unanimously to deny Appellees' petition for panel rehearing. Judge Pregerson and Judge M. Smith have voted to deny Appellees' petition for rehearing en banc, and Judge Holland so recommends.

The full court has been advised of the Opinion and petition for rehearing en banc,

[673 F.3d 883]

and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Accordingly, Appellees' petition for rehearing or for rehearing en banc is DENIED.

No further petitions for rehearing or rehearing en banc will be entertained in this case.

OPINION
M. SMITH, Circuit Judge:

Plaintiffs–Appellants Natural Resources Defense Council and Santa Monica Baykeeper appeal the district court's grant of summary judgment in favor of two municipal entities that Plaintiffs allege are discharging polluted stormwater in violation of the Federal Water Pollution Control Act (the Clean Water Act, Act, or CWA), 86 Stat. 816, codified as amended at 33 U.S.C. § 1251 et seq. Plaintiffs contend that Defendants–Appellees County of Los Angeles (County) and Los Angeles County Flood Control District (District) are discharging polluted urban stormwater runoff collected by municipal separate storm sewer systems (ms4) into navigable waters in Southern California. The levels of pollutants detected in four rivers—the Santa Clara River, the Los Angeles River, the San Gabriel River, and Malibu Creek (collectively, the Watershed Rivers)—exceed the limits allowed in a National Pollutant Discharge Elimination System (NPDES) permit which governs municipal stormwater discharges in the County. Although all parties agree that numerous water-quality standards have been exceeded in the Watershed Rivers, Defendants contend that there is no evidence establishing their responsibility for, or discharge of, stormwater carrying pollutants to the rivers. The district court agreed with Defendants and entered a partial final judgment.

We conclude that the district court erred with respect to the evidence of discharges by the District into two of the Watershed Rivers—the Los Angeles River and San Gabriel River. Specifically, Plaintiffs provided evidence that the monitoring stations for the Los Angeles and San Gabriel Rivers are located in a section of ms4 owned and operated by the District and, after stormwater known to contain standards-exceeding pollutants passes through these monitoring stations, this polluted stormwater is discharged into the two rivers. Accordingly, Plaintiffs were entitled to summary judgment on the District's liability for discharges into the Los Angeles River and San Gabriel River, and therefore we reverse the district court's grant of summary judgment in favor of the District on these claims.

Plaintiffs, however, failed to meet their evidentiary burden with respect to discharges by the District into the Santa Clara River and Malibu Creek. Plaintiffs did not provide evidence sufficient for the district court to determine if stormwater discharged from an ms4 controlled by the District caused or contributed to pollution exceedances located in these two rivers. Similarly, Plaintiffs did not delineate how stormwater from ms4s controlled by the County caused or contributed to exceedances in any of the Watershed Rivers. Accordingly, we affirm the district court's grant of summary judgment in favor of the Defendants on these claims.

FACTUAL AND PROCEDURAL BACKGROUND
I. Stormwater Runoff in Los Angeles CountyA. The MS4

Stormwater runoff is surface water generated by precipitation events, such as rainstorms, which flows over streets, parking

[673 F.3d 884]

lots, commercial sites, and other developed parcels of land. Whereas natural, vegetated soil can absorb rainwater and capture pollutants, paved surfaces and developed land can do neither. When stormwater flows over urban environs, it collects “suspended metals, sediments, algae-promoting nutrients (nitrogen and phosphorus), floatable trash, used motor oil, raw sewage, pesticides, and other toxic contaminants[.]” Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 840 (9th Cir.2003). This runoff is a major contributor to water pollution in Southern California rivers and the Pacific Ocean and contributes to the sickening of many ocean users each year.

The County is a sprawling 4,500 square-mile amalgam of populous incorporated cities and significant swaths of unincorporated land. The District is a public entity governed by the Los Angeles County Board of Supervisors and the Department of Public Works. The District is comprised of 84 cities and some unincorporated areas of the County. The County and the District are separate legal entities.

In the District, stormwater runoff is collected by thousands of storm drains located in each municipality and channeled to a storm sewer system. The municipalities in the District operate ms4s 1 to collect and channel stormwater. The County also operates an ms4 for certain unincorporated areas. Unlike a sanitary sewer system, which transports municipal sewage for treatment at a wastewater facility, or a combined sewer system, which transports sewage and stormwater for treatment, ms4s contain and convey only untreated stormwater. See 40 C.F.R. § 122.26(a)(7), (b)(8). In the County, municipal ms4s are “highly interconnected” because the District allows each municipality to connect its storm drains to the District's extensive flood-control and storm-sewer infrastructure (the MS4).2 That infrastructure includes 500 miles of open channels and 2,800 miles of storm drains. The length of the MS4 system and the locations of all storm drain connections are not known exactly because a comprehensive map of the storm drain system does not exist. While the number and location of storm drains are too numerous to catalogue, it is undisputed that the MS4 collects and channels stormwater runoff from across the County. That stormwater is channeled in the MS4 to various watercourses including the four Watershed Rivers at the heart of this litigation: the Los Angeles River, the San Gabriel River, the Santa Clara River, and Malibu Creek. The Watershed Rivers drain into the Pacific Ocean at Santa Monica Bay, Los Angeles Harbor, and Long Beach Harbor.

[673 F.3d 885]

The gravamen of Plaintiffs' action is that by allowing untreated and heavily-polluted stormwater to flow unabated from the MS4 into the Watershed Rivers, and eventually into the Pacific Ocean, Defendants have violated the Clean Water Act.

B. The Clean Water Act and NPDES Permit

The Clean Water Act is the nation's primary water-pollution-control law. The Act's purpose is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). “To serve those ends, the Act prohibits ‘the discharge of any pollutant by any person’ unless done in compliance with some provision of the Act.” S. Fl. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004) (quoting 33 U.S.C. § 1311(a)). “Discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source[.]” 33 U.S.C. § 1362(12); see Comm. to Save Mokelumne River v. East Bay Mun. Util. Dist., 13 F.3d 305, 308 (9th Cir.1993) (characterizing “discharge” as “ ‘add[ing]’ pollutants from the outside world to navigable water”).

Under the Clean Water Act, ms4s fall under the definition of “point sources.” 33 U.S.C. § 1362(14). 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...

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