Pac. Coast Fed'n of Fishermen's Ass'ns v. Glaser

• Decision Date: 16 September 2013
• Docket Number: No. CIV S-2:11-2980-KJM-CKD,CIV S-2:11-2980-KJM-CKD
• Court: U.S. District Court — Eastern District of California
• Parties: PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, et al., Plaintiffs, v. DONALD GLASER, Regional Director of U.S. Bureau of Reclamation, U.S. BUREAU OF RECLAMATION; and SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, Defendants.

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, et al., Plaintiffs, v. DONALD GLASER, Regional Director of U.S. Bureau of Reclamation, U.S. BUREAU OF RECLAMATION;and SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, Defendants.

No. CIV S-2:11-2980-KJM-CKD

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

DATED: September 16, 2013.

ORDER

Pacific Coast Federation of Fishermen's Associations, California Sportfishing Protection Alliance, Friends of the River, San Francisco Crab Boat Owners, Institute for Fisheries Resources, and Felix Smith (collectively, "plaintiffs") bring this action under the Citizen Suit Provision of the Clean Water Act, 33 U.S.C. § 1251, et seq. ("Clean Water Act" or "CWA"). (Compl. ¶ 2, ECF¹ 2.) Plaintiffs allege that the Grasslands Bypass Project, jointly administered by Donald Glaser, Regional Director of U.S. Bureau of Reclamation, the U.S.Bureau of Reclamation ("federal defendants"), and San Luis & Delta-Mendota Water Authority (the "Authority" or "Auth.") (together with federal defendants, "defendants"), illegally discharges polluted water into San Luis Drain and Mud Slough, two waterways that are covered by the Clean Water Act. (Compl. ¶¶ 3-5.) Plaintiffs contend that this discharge violates the CWA because the Grasslands Bypass Project is a point source for which defendants have failed to obtain a National Pollutant Discharge Elimination System ("NPDES") permit. The central dispute before the court is whether the Project's long established method of channeling discharges through a subsurface tile system requires an NPDES permit under the CWA.

This matter is before the court on federal defendants' and plaintiffs' motions for judgment on the pleadings under Rule 12(c), filed on October 24, 2012, and November 1, 2012, respectively. (ECF 50; ECF 51.) The court heard argument on the motions on January 18, 2013. Stephan Volker appeared for plaintiffs; Martin McDermott, Eric Buescher, and Philip Gregory appeared for defendants. For the reasons below, both parties' 12(c) motions are DENIED and plaintiffs' complaint is DISMISSED without prejudice.

I. STATUTORY BACKGROUND, FACTS, AND PROCEDURAL HISTORY

A. Statutory Background

Congress enacted the Clean Water Act, 33 U.S.C. § 1251, et seq. to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters" through limiting pollution from "point sources." Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063, 1070 (9th Cir. 2011), rev'd on other grounds sub nom. Decker v. Nw. Envtl. Def. Ctr., 568 U.S. _, 133 S.Ct. 1326 (2013). "A cornerstone of the Clean Water Act is that the 'discharge of any pollutant' from a 'point source' into navigable waters of the United States is unlawful unless the discharge is made according to the terms of an NPDES permit obtained from either the United States Environmental Protection Agency ("EPA") or from an authorized state agency." Ass'n to Protect Hammersley, Eld, & Totten Inlets v. Taylor Res, 299 F.3d 1007, 1009 (9th Cir. 2002). The parties in this case do not dispute the Project discharges a pollutant into navigable waters.

An NPDES permit is required for any polluted discharge. See 33 U.S.C. § 1311(a), 1342. The term "discharge" is a term of art under the CWA that presumes the presence of a "point source." 33 U.S.C. § 1362(12). Therefore, an NPDES permit is not required for a non-point source. In this case, the primary disagreement between the parties is whether the underground tile drainage system utilized by defendants is a point source or nonpoint source. Although not defined in the CWA, "nonpoint source pollution is . . . widely understood to be the type of pollution that arises from many dispersed activities over large areas, and is not traceable to any single discrete source. Because it arises in such a diffuse way, it is very difficult to regulate through individual permits." League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1184 (9th Cir. 2002). By comparison, the CWA defines a "point source" as

[a]ny 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. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

33 U.S.C. § 1362(14). Moreover, in addition to this definitional exclusion for irrigated agriculture return flows, Congress also incorporated the exclusion when addressing NPDES permitting: "The Administrator shall not require a permit under this section for discharges composed entirely of return flows from irrigated agriculture . . . ." 33 U.S.C. § 1342(l)(1).²

B. Facts

Irrigation has occurred on farmland in the Grasslands Area of the San Joaquin Valley for more than fifty years. (Auth. Answer ¶ 26(a).) Irrigation occurs both above and below ground. (Id. ¶ 26(d).) Farmers capture and reuse excess water above ground; however,excess water below ground must be drained, because an impervious layer of clay below the Valley's farmlands creates a shallow water table that threatens crops' root zones. (Id. ¶ 26(c), (d), (j); Compl. Ex. 1 at 15, 19, ECF 2.) This excess subsurface water is drained by the Grasslands Bypass Project (the "Project"), jointly administered by the federal defendants and the Authority. (Auth. Answer ¶¶ 5, 26(j)-(m).) The Project uses a tile drainage system, consisting of a network of perforated drain laterals underlying Valley farmland that catch water and direct it into the San Luis Drain and, from there, into the Mud Slough, the San Joaquin River, and the Bay-Delta. (Id.) It is undisputed both the San Luis Drain and Mud Slough are navigable waters under the CWA. (Id. ¶ 5.)³ It is also undisputed that the discharged subsurface water is contaminated with naturally-occurring selenium leached from the soil, among other pollutants. (Compl. ¶ 26; Federal Defs.' Answer ¶ 25.) Plaintiffs allege that some amount of the contaminated subsurface water, or groundwater, is unrelated to irrigation; hence, discharging it into the San Luis Drain and the Mud Slough without an NPDES permit violates the CWA. (Id. ¶ 5.) Defendants counter that the CWA exempts from NPDES permitting all discharges that are, like the Project's, related to crop production. (Auth. Answer ¶¶ 4, 26(j); Federal Defs.' Answer ¶¶ 26, 36.)

C. Procedural History

Plaintiffs filed their complaint on November 9, 2011. (ECF 2.) Federal defendants filed their answer on January 9, 2012. (ECF 15.) On January 10, the Authority filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF 21.) Federal defendants filed their first motion for judgment on the pleadings on March 16, 2012. (ECF 37.) This court denied both the Authority's motion to dismiss and federal defendants' motion for judgment on the pleadings in a single order on August 31, 2012, after a hearing. (ECF 47.) The court held that plaintiffs established jurisdiction and, at that stage of thelitigation, had sufficiently stated a claim that defendants were violating the CWA. (Id. at 10-11.) The court also denied the motion for judgment on the pleadings as premature, because the Authority had not yet filed an answer and thus the pleadings were not closed. (Id. at 11.) After the Authority filed its answer on September 21 (ECF 49), federal defendants filed a second motion for judgment on the pleadings on October 24 (ECF 50), and plaintiffs filed a cross-motion for judgment on the pleadings on November 1, 2012 (ECF 51). Plaintiffs, federal defendants, and the Authority filed oppositions on November 16, 2012. (ECF 54; ECF 55; ECF 56.) Each party filed its reply on January 11, 2013. (ECF 58; ECF 59; ECF 60.)

II. LEGAL STANDARD

"After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." FED. R. CIV. P. 12(c). "Judgment on the pleadings is properly granted when, taking all allegations in the pleading as true, the moving party is entitled to judgment as a matter of law." Merchs. Home Delivery Serv., Inc. v. Frank B. Hall & Co., 50 F.3d 1486, 1488 (9th Cir. 1995) (citing Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993)). A Rule 12(c) motion is reviewed under the same standard as a Rule 12(b)(6) motion to dismiss for failure to state a claim. Harris v. Ventyx, Inc., No. S-11-308 FCD/GGH, 2011 WL 3584498, at *2 (E.D. Cal. Aug. 12, 2011) (citing Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., 132 F.3d 526, 528-29 (9th Cir. 1997)).

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action . . . .'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the...