Natural Resources Defense Council, Inc. v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATURAL RESOURCES DEFENSE 

COUNCIL, INC.; SANTA MONICA

BAYKEEPER,

Plaintiffs-Appellants,

v.

COUNTY OF LOS ANGELES; LOS

ANGELES COUNTY FLOOD CONTROL

DISTRICT; MICHAEL ANTONOVICH, in No. 10-56017

his official capacity as Supervisor;

D.C. No.

YVONNE BURKE, in her official

capacity as Supervisor; GLORIA  2:08-cv-01467-

MOLINA, in her official capacity as AHM-PLA

Supervisor; ZEV YAROSLAVSKY, in OPINION

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.



Appeal from the United States District Court

for the Central District of California

Howard Matz, District Judge, Presiding

Argued and Submitted

December 10, 2010—Pasadena, California

Filed March 10, 2011

3341

3342 NRDC v. COUNTY OF LOS ANGELES

Before: Harry Pregerson, and Milan D. Smith, Jr.,

Circuit Judges, and H. Russel Holland,

Senior District Judge.*

Opinion by Judge Milan D. Smith, Jr.

*The Honorable H. Russel Holland, Senior United States District Judge

for the District of Alaska, sitting by designation.

NRDC v. COUNTY OF LOS ANGELES 3345

COUNSEL

Aaron Colangelo, Esquire, Natural Resources Defense Coun-

cil, Washington, D.C.; Daniel Cooper, Esquire, Lawyers for

Clean Water, San Francisco, California, for plaintiffs-

appellants Natural Resources Defense Council, Inc. and Santa

Monica Baykeeper.

Andrea Sheridan Ordin, Esquire, Judith A. Fries, Esquire,

Laurie Dods, Esquire, Los Angeles County Department of

County Counsel, Los Angeles, California; Howard Gest, Esq.,

David W. Burhenn, Esq., Burhenn & Gest LLP, Los Angeles,

California, for defendants-appellees County of Los Angeles,

et al.

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 viola-

tion 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 pol-

3346 NRDC v. COUNTY OF LOS ANGELES

luted 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 munici-

pal 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 Water-

shed 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 pol-

luted stormwater is discharged into the two rivers. Accord-

ingly, 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 dis-

charged from an ms4 controlled by the District caused or con-

tributed 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

NRDC v. COUNTY OF LOS ANGELES 3347

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 County

A. The MS4

Stormwater runoff is surface water generated by precipita-

tion events, such as rainstorms, which flows over streets,

parking 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 nutri-

ents (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 contrib-

utes 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 unin-

corporated land. The District is a public entity governed by

the Los Angeles County Board of Supervisors and the Depart-

ment 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 oper-

ate ms4s1 to collect and channel stormwater. The County also

1

Under Federal Regulations, an ms4 is:

a conveyance or system of conveyances (including roads with

3348 NRDC v. COUNTY OF LOS ANGELES

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 sys-

tem, 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 chan-

nels 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, as 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

drainage systems, municipal streets, catch basins, curbs, gutters,

ditches, man-made channels, or storm drains):

(i) Owned or operated by a State, city, town, borough, county,

parish, district, association, or other public body . . . having juris-

diction over disposal of sewage, industrial wastes, storm water,

or other wastes, including special districts under State law such

as a sewer district, flood control district or drainage district, or

similar entity . . .

(ii) Designed or used for collecting or conveying storm water;

(iii) Which is not a combined sewer; and

(iv) Which is not part of a Publicly Owned Treatment Works

(POTW). . . .

40 C.F.R. § 122.26(b)(8).

2

Throughout this Opinion, reference is made to both “ms4” and “the

MS4.” The former is a generic reference to municipal separate storm

sewer systems without regard to their particular location, while the latter

specifically refers to the flood control and storm-sewer infrastructure

described supra that exists in the County and is controlled by the District.

NRDC v. COUNTY OF LOS ANGELES 3349

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 Mon-

ica Bay, Los Angeles Harbor, and Long Beach Harbor.

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 Indi-

ans, 541 U.S. 95, 102 (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 discharged.” 33 U.S.C.

§ 1362(14).

A person or entity wishing to add pollutants to navigable

waters must comply with the NPDES, which “requires dis-

3350 NRDC v. COUNTY OF LOS ANGELES

chargers to obtain permits that place limits on the type and

quantity of pollutants that can be released into the Nation’s

waters.” Miccosukee Tribe, 541 U.S. at 102; 33 U.S.C.

§ 1342(a), (p). The Act “generally prohibits the ‘discharge of

any pollutant’ . . . from a ‘point source’ into the navigable

waters of the United States’ ” unless the point source is cov-

ered by an NPDES permit. Defenders of Wildlife v. Browner,

191 F.3d 1159, 1163 (9th Cir. 1999) (quoting 33 U.S.C.

§§ 1311(a), 1362(12)(A)) (emphasis added); see also Arkan-

sas v. Oklahoma, 503 U.S. 91, 101-02 (1992) (describing

NPDES permitting system). An NPDES permit requires its

holder—the “permittee”—to follow the requirements of

numerous Clean Water Act provisions, see 33 U.S.C.

§ 1342(a), which include effluent limitations, water-quality

standards, water monitoring obligations, public reporting

mechanisms, and certain discharge requirements. See id.

§§ 1311, 1312, 1314, 1316, 1317, 1318, 1343.

The Act uses two water-quality-performance standards, by

which a discharger of water may be evaluated—“effluent lim-

itations” and “water quality standards.” Arkansas v. Okla-

homa, 503 U.S. at 101 (citing 33 U.S.C. §§ 1311, 1313,

1314); see also Sierra Club v. Union Oil Co. of Calif., 813

F.2d 1480, 1483 (9th Cir. 1987), vacated on other grounds,

485 U.S. 931 (1988), reinstated, 853 F.2d 667 (9th Cir. 1988).

An effluent limitation is “any restriction established by a State

or the [Environmental Protection Agency (EPA)] Administra-

tor on quantities, rates, and concentrations of chemical, physi-

cal, biological, and other constituents which are discharged

from point sources into navigable waters. . . .” 33 U.S.C.

§ 1362(11). An effluent-limitation guideline is determined in

light of “ ‘the best practicable control technology currently

available.’ ” Union Oil, 813 F.2d at 1483 (quoting 33 U.S.C.

§ 1311(b)(1)(A)).

Water-quality standards “are used as a supplementary basis

for effluent limitations, so that numerous dischargers, despite

their individual compliance with technology-based limita-

NRDC v. COUNTY OF LOS ANGELES 3351

tions, can be regulated to prevent water quality from falling

below acceptable levels.” Union Oil, 813 F.2d at 1483 (citing

EPA v. Calif. ex rel. State Water Res. Control Bd., 426 U.S.

200, 205 n.12 (1976) (hereafter EPA v. Calif.)). Water-quality

standards are developed in a two-step process. First, the EPA,

or state water authorities establish a waterway’s “beneficial

use.” Natural Res. Def. Council, Inc. v. EPA, 16 F.3d 1395,

1400 (4th Cir. 1993); see also Cal. Water Code § 13050(f)

(“ ‘Beneficial uses’ of the waters of the state that may be pro-

tected against quality degradation include, but are not limited

to, domestic, municipal, agricultural and industrial supply;

power generation; recreation; aesthetic enjoyment; naviga-

tion; and preservation and enhancement of fish, wildlife, and

other aquatic resources or preserves.”). Once the beneficial

use is determined, water quality criteria that will yield the

desired water conditions are formulated and implemented. See

NRDC v. EPA, 16 F.3d at 1400; see also 33 U.S.C. § 1313(a),

(c)(2)(A); 40 C.F.R. § 131.3(i) (“Water quality standards are

provisions of State or Federal law which consist of a desig-

nated use or uses for the waters of the United States and water

quality criteria for such waters based upon such uses.”).

Unlike effluent limitations, which are promulgated by the

EPA to achieve a certain level of pollution reduction in light

of available technology, water-quality standards emanate

from the state boards charged with managing their domestic

water resources. See Arkansas v. Oklahoma, 503 U.S. at 101.

The EPA gives the states guidance in drafting water-quality

standards and “state authorities periodically review water

quality standards and secure the EPA’s approval of any revi-

sions in the standards.” Id.

The EPA has authorized the State of California to develop

water-quality standards and issue NPDES permits. Under the

Porter-Cologne Water Quality Control Act, California state

law designates the State Water Resources Control Board and

nine regional boards as the principal state agencies for enforc-

ing federal and state water pollution law and for issuing per-

3352 NRDC v. COUNTY OF LOS ANGELES

mits. See Cal. Water Code §§ 13000, 13001, 13140, 13240,

13370, 13377. Beginning in 1990, the California State Water

Resources Control Board for the Los Angeles Region (the

Regional Board) issued an NPDES permit (the Permit) to

cover stormwater discharges by the County, the District, and

84 incorporated municipalities in the County (collectively the

Permittees or Co-Permittees).3 See City of Arcadia v. State

Water Res. Control Bd., 119 Cal. Rptr. 3d 232, 240-41 (Cal.

Ct. App. 2010). The Permit was renewed in 1996, 2001, 2006,

and 2007.

The Permit is divided into two broad sections: findings by

the Regional Board and an order authorizing and governing

the Permittees’ discharges (Order). The findings cover many

introductory and background subjects, including a history of

NPDES permitting in the County; applicable state and federal

laws governing stormwater discharges; studies conducted by

the County and researchers about the deleterious effects of

polluted stormwater; coverage and implementation provi-

sions; and guidelines for administrative review of Permit pro-

visions. The Permit covers “all areas within the boundaries of

the Permittee municipalities . . . over which they have regula-

tory jurisdiction as well as unincorporated areas in Los Ange-

les County within the jurisdiction of the Regional Board.” In

total, the Permit governs municipal stormwater discharge

across more than 3,100 square miles of land in the County.

The Permit relates the many federal and state regulations

governing stormwater discharges to Southern California’s

watercourses. Among these regulations is the Water Quality

Control Plan for the Los Angeles Region (the Basin Plan).

Under California law, the regional boards’ “water quality

plans, called ‘basin plans,’ must address the beneficial uses to

be protected as well as water quality objectives, and they must

3

“Co-permittee means a permittee to a NPDES permit that is only

responsible for permit conditions relating to the discharge for which it is

operator.” 40 C.F.R. § 122.26(b)(1).

NRDC v. COUNTY OF LOS ANGELES 3353

establish a program of implementation.” City of Arcadia, 119

Cal. Rptr. 3d at 240 (quoting City of Burbank v. State Water

Res. Control Bd., 108 P.3d 862, 865 (Cal. 2005) (citing Cal.

Water Code § 13050(j))). The Permit provides that “[t]he

Basin Plan designates beneficial uses of receiving waters and

specifies both narrative and numerical water quality objec-

tives for the receiving water in Los Angeles County.” “Re-

ceiving waters” are defined as “all surface water bodies in the

Los Angeles Region that are identified in the Basin Plan.”

“Permittees are to assure that storm water discharges from the

MS4 shall neither cause nor contribute to the exceedance of

water quality standards and objectives nor create conditions of

nuisance in the receiving waters, and that the discharge of

non-storm water to the MS4 has been effectively prohibited.”

The Permit incorporates and adopts the Basin Plan, which sets

limits on bacteria and contaminants for the receiving waters

of Southern California. The water-quality standards limit,

among other pollutants, the levels of ammonia, fecal coliform

bacteria, arsenic, mercury, and cyanide in Southern Califor-

nia’s inland rivers.

The Permit contains myriad prohibitions and conditions

regarding discharges into and from the MS4. Under Part 1, the

Permittees are directed to “effectively prohibit non-storm

water discharges into the MS4 and watercourses” unless

allowed by an NPDES permit. Under Part 2, titled “Receiving

Water Limitations,” “discharges from the MS4 that cause or

contribute to the violation of the Water Quality Standards or

water quality objectives are prohibited.” The “Water Quality

Standards and Water Quality Objectives” are defined in the

Permit as “water quality criteria contained in the Basin Plan,

the California Ocean Plan, the National Toxics Rule, the Cali-

fornia Toxics Rule, and other state or federal approved sur-

face water quality plans. Such plans are used by the Regional

Board to regulate all discharges, including storm water dis-

charges.”

The Permit provides that Permittees “shall comply” with

the MS4 discharge prohibitions “through timely implementa-

3354 NRDC v. COUNTY OF LOS ANGELES

tion of control measures and other actions to reduce pollutants

in the discharges in accordance with [the Los Angeles Storm-

water Quality Management Program (SQMP)] and its compo-

nents and other requirements of this Order. . . .” The SQMP

includes “descriptions of programs, collectively developed by

the Permittees in accordance with provisions of the NPDES

Permit, to comply with applicable federal and state law.” The

Permit sets out a procedure to ensure Permittee compliance

when any water-quality standards are breached:

a) Upon a determination by either the Permittee or

the Regional Board that discharges are causing or

contributing to an exceedance of an applicable Water

Quality Standard, the Permittee shall promptly notify

and thereafter submit a Receiving Water Limitations

(RWL) Compliance Report . . . to the Regional

Board that describes [Best Management Practices

(BMPs)] that are currently being implemented and

additional BMPs that will be implemented to prevent

or reduce any pollutants that are causing or contrib-

uting to the exceedances of Water Quality Standards.

...

c) Within 30 days following the approval of the

RWL Compliance Report, the Permittee shall revise

the SQMP and its components and monitoring pro-

gram to incorporate the approved modified BMPs

that have been and will be implemented, an imple-

mentation schedule, and any additional monitoring

required.

d) Implement the revised SQMP and its components

and monitoring program according to the approved

schedule.

. . . So long as the Permittee has complied with the

procedures set forth above and is implementing the

NRDC v. COUNTY OF LOS ANGELES 3355

revised SQMP and its components, the Permittee

does not have to repeat the same procedure for con-

tinuing or recurring exceedances of the same receiv-

ing water limitations unless directed by the Regional

Board to develop additional BMPs.

When a violation arises, a Permittee must adhere to the proce-

dures in its Compliance Report until the exceedances abate.

The Permit requires the Permittees, inter alia, to reduce

pollution in stormwater to the “maximum extent practicable

[(MEP)].” Each Permittee is vested with the “necessary legal

authority” to prohibit discharges to the MS4, and is directed

to develop stormwater and urban runoff ordinances for its

jurisdiction.

The Permit has both self-monitoring and public-reporting

requirements, which include: (1) monitoring of “mass emis-

sions” at seven mass emission monitoring stations; (2) Water

Column Toxicity Monitoring; (3) Tributary Monitoring; (4)

Shoreline Monitoring; (5) Trash Monitoring; (6) Estuary

Sampling; (7) Bioassessment; and (8) Special Studies.

This case concerns high levels of pollutants, particularly

heavy metals and fecal bacteria, identified by mass-emissions

monitoring stations for the four Watershed Rivers (the Moni-

toring Stations). Mass-emissions monitoring measures all

constituents present in water, and the readings give a cumula-

tive picture of the pollutant load in a waterbody. According

to the Permit, the purpose of mass-emissions monitoring is to

(1) estimate the mass emissions from the MS4, (2) assess

trends in the mass emissions over time, and (3) determine if

the MS4 is contributing to exceedances of Water Quality

Standards by comparing results to the applicable standards in

the Basin Plan. The Permit establishes that the Principal Per-

mittee, which is the District, shall monitor the mass-emissions

stations. The Permit requires that mass-emission readings be

taken five times per year for the Watershed Rivers.

3356 NRDC v. COUNTY OF LOS ANGELES

The Los Angeles River and San Gabriel River Monitoring

Stations are located in a channelized portion of the MS4 that

is owned and operated by the District. See Excerpts of Record

at 11; see also Dist. Ct. Docket No. 101: Declaration of Aaron

Colangelo Ex. N: Deposition of Mark Pestrella at 476-78. The

Los Angeles River Monitoring Station is located in the City

of Long Beach in “a concrete lined trapezoidal channel.”4 The

Los Angeles River Monitoring Station measures “total

upstream tributary drainage” of 825 square miles, as the Los

Angeles River is the largest watershed outlet in the County.

The San Gabriel River Monitoring Station is located in Pico

Rivera and measures an upstream tributary watershed of 450

square miles.

The Malibu Creek Monitoring Station is not located within

a channelized portion of the MS4 but at an “existing stream

gage station” near Malibu Canyon Road. It measures 105

miles of tributary watershed. The Santa Clara River Monitor-

ing Station is located in the City of Santa Clara and measures

an upstream tributary area of 411 square miles.5

C. Water-Quality Exceedances in the Watershed

Rivers

Between 2002 and 2008, the four Monitoring Stations iden-

tified hundreds of exceedances of the Permit’s water-quality

standards. These water-quality exceedances are not disputed.

For instance, monitoring for the Los Angeles and San Gabriel

Rivers showed 140 separate exceedances. These included

4

“Section Two: Site Descriptions,” Los Angeles Cnty. Dept. of Pub.

Works, available at http://dpw.lacounty.gov/wmd/npdes/9899_report/

SiteDesc.pdf (last accessed Mar. 2, 2011); see also “Section Two: Site

Descriptions,” Los Angeles Cnty. Dept. of Pub. Works, available at http://

dpw.lacounty.gov/wmd/NPDES/2006-07_report%5CSection%202.pdf

(last accessed Mar. 2, 2011).

5

“Section Two: Site Descriptions,” Los Angeles Cnty. Dept. of Pub.

Works, available at http://dpw.lacounty.gov/wmd/NPDES/2006-07_

report%5CSection%202.pdf (last accessed Mar. 2, 2011).

NRDC v. COUNTY OF LOS ANGELES 3357

high levels of aluminum, copper, cyanide, fecal coliform bac-

teria, and zinc in the rivers. Further, ocean monitoring at Sur-

frider Beach showed that there were 126 separate bacteria

exceedances on 79 days, including 29 days where the fecal

coliform bacteria limit was exceeded.

The District admits that it conveys pollutants via the MS4,

but contends that its infrastructure alone does not generate or

discharge pollutants. According to Defendants, the District

conveys the collective discharges of the numerous “up-sewer”

municipalities. Moreover, Defendants identify thousands of

permitted dischargers whose pollutants are reaching the

Watershed Rivers:

(1) Los Angeles River watershed: (a) at least 1,344

NPDES-permitted industrial and 488 construction

stormwater dischargers allowed to discharge during

the time period relevant to the case; (b) three waste-

water treatment plants; and (c) 42 separate incorpo-

rated cities within the Los Angeles River watershed

discharging into the river upstream of the mass emis-

sion station.

(2) San Gabriel River watershed: (a) at least 276

industrial and 232 construction stormwater discharg-

ers during the relevant time period; (b) at least 20

other industrial dischargers that were specifically

permitted to discharge pollutants in excess of the

water quality standards at issue in this action; (c) two

wastewater treatment plants; and (d) 21 separate

incorporated cities discharging into the watershed

upstream of the mass emission station.

(3) Santa Clara River watershed: (a) eight discharg-

ers permitted by industrial wastewater discharge per-

mits where the limits in the permit allowed

discharges of pollutants at concentrations higher than

the water quality standards which plaintiffs contend

3358 NRDC v. COUNTY OF LOS ANGELES

were exceeded; (b) approximately 26 industrial and

187 construction stormwater dischargers; and (c) the

Saugus Wastewater Reclamation Plant.

(4) Malibu Creek watershed: (a) seven industrial

wastewater dischargers; and (b) at least five permit-

ted discharges under the general industrial storm-

water permit and at least 16 construction sites

permitted to discharge under the general construction

stormwater permit.

II. Proceedings before the District Court

Based on data self-reported by Defendants, Plaintiffs

catalogued the water-quality exceedances in the Watershed

Rivers. Beginning on May 31, 2007, Plaintiffs sent a series of

notice letters to Defendants concerning these exceedances. On

March 3, 2008, based on these purported violations, Plaintiffs

commenced this citizen-enforcement action. After the district

court dismissed certain elements of Plaintiffs’ initial com-

plaint because notice of the Permit violations was defective,

Plaintiffs sent Defendants an adequate notice letter on July 3,

2008.

Plaintiffs filed the First Amended Complaint (Complaint)

on September 18, 2008. In the Complaint, Plaintiffs assert six

causes of action under the Clean Water Act. Only the first

four of Plaintiffs’ claims, which relate to the exceedances in

the Watershed Rivers, and which the district court designated

the “Watershed Claims,” are before us. The first three Water-

shed Claims allege that, beginning in 2002 or 2003, the Dis-

trict and the County caused or contributed to exceedances of

water-quality standards in the Santa Clara River (Claim 1),

the Los Angeles River (Claim 2), and the San Gabriel River

(Claim 3), in violation of 33 U.S.C. §§ 1311(a), 1342(p). The

fourth Watershed Claim alleges that, beginning in 2002,

Defendants caused or contributed to exceedances of the water

quality standards and violated the Total Maximum Daily Load

NRDC v. COUNTY OF LOS ANGELES 3359

(TMDL) limits in Malibu Creek. Plaintiffs’ four Watershed

Claims each rest on the same premise: (1) the Permit sets

water-quality limits for each of the four rivers; (2) the mass-

emissions stations have recorded exceedances of those stan-

dards; (3) an exceedance is non-compliance with the Permit

and, thereby, the Clean Water Act; and (4) Defendants, as

holders of the Permit and operators of the MS4, are liable

under the Act.

Before the district court, Plaintiffs moved for partial sum-

mary judgment on two of the Watershed Claims: the Los

Angeles River and San Gabriel River exceedances. Defen-

dants cross-moved for summary judgment on all four Water-

shed Claims.

In a March 2, 2010 Order, the district court denied each

cross-motion for summary judgment on the Watershed

Claims. NRDC v. County of Los Angeles, No. 08 Civ. 1467

(AHM), 2010 WL 761287 (C.D. Cal. Mar. 2, 2010), amended

on other grounds, 2011 WL 666875 (C.D. Cal. Jan. 27, 2011).

Although the district court accepted Plaintiffs’ arguments that

the Permit “clearly prohibits ‘discharges from the MS4 that

cause or contribute to the violation of Water Quality Stan-

dards or water quality objectives,’ ” 2010 WL 761287, at *6,

and that mass-monitoring stations “are the proper monitoring

locations to determine if the MS4 is contributing to excee-

dances [of the Water Quality Standards or water quality

objectives,]” id., the district court held that Plaintiffs were

attempting to establish liability without presenting evidence

of who was responsible for the stormwater discharge. The dis-

trict court observed that although “the District is responsible

for the pollutants in the MS4” at the time they pass the mass-

emissions stations, “that does not necessarily determine the

question of whether the water passing by these points is a

‘discharge’ within the meaning of the Permit and the Clean

Water Act.” Id. at *7. Unable to decipher from the record

where the MS4 ended and the Watershed Rivers begin, or

whether any upstream outflows were contributing stormwater

3360 NRDC v. COUNTY OF LOS ANGELES

to the MS4, the district court stated that “Plaintiffs would

need to present some evidence (monitoring data or an admis-

sion) that some amount of a standards-exceeding pollutant is

being discharged though at least one District outlet.” Id. at *8.

Following supplemental briefing, the district court again

determined that “Plaintiffs failed to present evidence that the

standards-exceeding pollutants passed through the Defen-

dants’ MS4 outflows at or near the time the exceedances were

observed. Nor did Plaintiffs provide any evidence that the

mass emissions stations themselves are located at or near a

Defendant’s outflow.” The district court thereupon entered

summary judgment for Defendants on all four Watershed

Claims.

Under Fed. R. Civ. P. 54(b), the district court entered a par-

tial final judgment on the Watershed Claims because they

were “factually and legally severable” from the other claims

and “[t]he parties and the Court would benefit from appellate

resolution of the central legal question underlying the water-

shed claims: what level of proof is necessary to establish

defendants’ liability.” Plaintiffs timely appeal.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291.

We review the district court’s grant of summary judgment

in a Clean Water Act enforcement action de novo. Assoc. to

Protect Hammersley, Eld, and Totten Inlets v. Taylor Res.,

Inc., 299 F.3d 1007, 1009 (9th Cir. 2002) (citing Waste Action

Project v. Dawn Mining Corp., 137 F.3d 1426, 1428 (9th Cir.

1998)).

DISCUSSION

Determining whether the County or the District violated the

Permit’s conditions, and thereby the Clean Water Act,

NRDC v. COUNTY OF LOS ANGELES 3361

requires us to examine whether an exceedance at a mass-

emission monitoring station is a Permit violation, and, if so,

whether it is beyond dispute that Defendants discharged pol-

lutants that caused or contributed to water-quality excee-

dances.

I. Whether Exceedances at Mass-Emission Stations

Constitute Permit Violations

[1] “The Clean Water Act regulates the discharge of pollu-

tants into navigable waters, prohibiting their discharge unless

certain statutory exceptions apply.” Russian River Watershed

Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1138

(9th Cir. 1998) (citing 33 U.S.C. § 1311(a)). One such excep-

tion is for discharges by entities or individuals who hold

NPDES permits. Id. The NPDES permitting program is the

“centerpiece” of the Clean Water Act and the primary method

for enforcing the effluent and water-quality standards estab-

lished by the EPA and state governments. Am. Iron & Steel

Inst. v. EPA, 115 F.3d 979, 990 (D.C. Cir. 1997); see also Nw.

Envtl. Advocates v. City of Portland, 56 F.3d 979, 986-90 (9th

Cir. 1995) (“Citizen suits to enforce water quality standards

effectuate complementary provisions of the CWA and the

underlying purpose of the statute as a whole.”); Friends of the

Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1225

(11th Cir. 2009) (citing Nat’l Wildlife Fed’n v. Gorsuch, 693

F.2d 156,175-76 (D.C. Cir. 1982) (“There is indeed some

basis in the legislative history for the position that Congress

viewed the NPDES program as its most effective weapon

against pollution.”)).

To decipher the meaning and enforceability of NPDES per-

mit terms, we interpret the unambiguous language contained

in the permit. Russian River, 142 F.3d at 1141. We review a

permit’s provisions and meaning as we would any contract or

legal document. See Nw. Envtl. Advocates, 56 F.3d at 982. As

described supra, the Permit prohibits MS4 discharges into

receiving waters that exceed the Water Quality Standards

3362 NRDC v. COUNTY OF LOS ANGELES

established in the Basin Plan and elsewhere. Specifically, Sec-

tion 2.1 provides: “[D]ischarges from the MS4 that cause or

contribute to the violation of Water Quality Standards or

water quality objectives are prohibited.” Section 2.2 of the

Permit reads: “Discharges from the MS4 of storm water, or

non-storm water, for which a Permittee is responsible for,

shall not cause or contribute to a condition of nuisance.”

Nevertheless, Defendants contend that exceedances

observed at mass-emissions stations cannot establish liability

on behalf of any individual Permittee. Their argument in this

respect, as we discuss more thoroughly infra, relies heavily on

their belief that the record is bereft of evidence connecting

Defendants to the water-quality exceedances. Defendants also

assert that the mass-emissions stations are “neither designed

nor intended” to measure the compliance of any Permittee

and, therefore, cannot form the basis for a Permit violation.

Defendants also argue that municipal compliance with an

NPDES stormwater permit cannot be reviewed under the

same regulatory framework as a private entity or individual.

In support of this contention, Defendants cite to a 1990 EPA

rule:

When enacting this provision, Congress was aware

of the difficulties in regulating discharges from

municipal separate storm sewers solely through tra-

ditional end-of-pipe treatment and intended for EPA

and NPDES States to develop permit requirements

that were much broader in nature than requirements

which are traditionally found in NPDES permits for

industrial process discharges or POTWs. The legisla-

tive history indicates, municipal storm sewer system

“permits will not necessarily be like industrial dis-

charge permits.” Often, an end-of-the-pipe treatment

technology is not appropriate for this type of dis-

charge.

Brief of Appellees 33 (quoting “National Pollutant Discharge

Elimination System Permit Application Regulations for Storm

NRDC v. COUNTY OF LOS ANGELES 3363

Water Discharges,” 55 Fed. Reg. 47,990, 48,037-38 (Nov. 16,

1990)).

As we detail infra, neither the statutory development of the

Clean Water Act nor the plain language of EPA regulations

supports Defendants’ arguments that NPDES permit viola-

tions are less enforceable or unenforceable in the municipal-

stormwater context. In fact, since the inception of the NPDES,

Congress has expanded NPDES permitting to bring municipal

dischargers within the Clean Water Act’s coverage.

A. Regulating MS4 Operators

The NPDES permitting program originated in the 1972

amendments to the Clean Water Act. Pub. L. 92-500, § 2, 86

Stat. 88, reprinted in 1972 U.S.C.C.A.N. 3668 (codified as

amended at 33 U.S.C. § 1342). At the time, the NPDES pro-

gram was viewed “as the primary means of enforcing the

Act’s effluent limitations.” Natural Res. Def. Council v.

Costle, 568 F.2d 1369, 1371 (D.C. Cir. 1977); see also Natu-

ral Res. Def. Council, Inc. v. EPA, 966 F.2d 1292, 1295 (9th

Cir. 1992) (examining statutory history of 1972 amendments

to the Clean Water Act) (hereafter NRDC v. EPA). The per-

mitting program is codified at Section 402 of the Clean Water

Act. 33 U.S.C. § 1342. In 1973, the EPA promulgated regula-

tions categorically exempting “discharges from a number of

classes of point sources . . . including . . . separate storm sew-

ers containing only storm runoff uncontaminated by any

industrial or commercial activity.” Costle, 568 F.2d at 1372

(citing 40 C.F.R. § 125.4 (1975)). The EPA’s exemption of

certain point sources, including ms4s, from Section 402’s

blanket requirement was invalidated by the United States

Court of Appeals for the District of Columbia Circuit in

Costle. Id. at 1376-77. The Costle court highlighted that “[t]he

wording of the [CWA], legislative history, and precedents are

clear: the EPA Administrator does not have authority to

exempt categories of point sources from the permit require-

ments of § 402.” Id. at 1377.

3364 NRDC v. COUNTY OF LOS ANGELES

In the ten-year period following the Costle decision, the

EPA did not promulgate regulations addressing discharges by

ms4 operators. See NRDC v. EPA, 966 F.2d at 1296 (citing

“National Pollutant Discharge Elimination System Permit

Application Regulations for Storm Water Discharges; Appli-

cation Deadlines,” 56 Fed. Reg. 56,548 (1991)). In 1987, after

continued nonfeasance by the EPA, Congress enacted the

Water Quality Act amendments to the Clean Water Act to

regulate stormwater discharges from, inter alia, ms4s. See

Defenders of Wildlife, 191 F.3d at 1163 (“Ultimately, in 1987,

Congress enacted the Water Quality Act amendments to the

CWA.”); NRDC v. EPA, 966 F.2d at 1296 (“Recognizing both

the environmental threat posed by storm water runoff and

EPA’s problems in implementing regulations, Congress

passed the Water Quality Act of 1987[.]”) (internal citations

omitted); see also 55 Fed. Reg. 47,994 (“[P]ermits for dis-

charges from municipal separate storm sewer systems must

require controls to reduce the discharge of pollutants to the

maximum extent practicable, and where necessary water

quality-based controls, and must include a requirement to

effectively prohibit non-storm water discharges into the storm

sewers. Furthermore, EPA in consultation with State and local

officials must develop a comprehensive program to designate

and regulate other storm water discharges to protect water

quality.”).

[2] The principal effect of the 1987 amendments was to

expand the coverage of Section 402’s permitting require-

ments. NRDC v. EPA, 966 F.2d at 1296. Section 402(p) estab-

lished a “phased and tiered approach” for NPDES permitting.

Nw. Envtl. Def. Ctr. v. Brown, 617 F.3d 1176, 1193 (9th Cir.

2010) (citing 33 U.S. § 1342(p)(2)). “The purpose of this

approach was to allow EPA and the states to focus their atten-

tion on the most serious problems first.” NRDC v. EPA, 966

F.2d at 1296. “Phase I” included “five categories of storm-

water discharges,” deemed “the most significant sources of

stormwater pollution,” who were required to obtain an

NPDES permit for their stormwater discharge by 1990.

NRDC v. COUNTY OF LOS ANGELES 3365

Brown, 617 F.3d at 1193 (citing 33 U.S. § 1342(p)(2)). The

five categories of the most serious discharge were:

(p) Municipal and industrial stormwater discharges

...

(2) . . .

...

(A) A discharge with respect to which a

permit has been issued under this section

before February 4, 1987.

(B) A discharge associated with industrial

activity.

(C) A discharge from a municipal separate

storm sewer system serving a population of

250,000 or more.

(D) A discharge from a municipal separate

storm sewer system serving a population of

100,000 or more but less than 250,000.

(E) A discharge for which the Administra-

tor or the State, as the case may be, deter-

mines that the stormwater discharge

contributes to a violation of a water quality

standard or is a significant contributor of

pollutants to waters of the United States.

33 U.S.C. § 1342(p)(2) (emphases added). Of the five catego-

ries of Phase I dischargers required to obtain the first permits,

two are ms4 operators: municipalities with populations over

250,000, and municipalities with populations between

100,000 and 250,000. Id. § 1342(p)(2)(C)-(D). Indeed, as

noted supra, the Permit at issue here was first authorized in

1990 pursuant to the 1987 amendments.

3366 NRDC v. COUNTY OF LOS ANGELES

Rather than regulate individual sources of runoff, such as

churches, schools and residential property (which one Con-

gressman described as a potential “nightmare”),6 and as regu-

lations prior to 1987 theoretically required, Congress put the

NPDES permitting requirement at the municipal level to ease

the burden of administering the program. Brown, 617 F.3d at

1193. That assumption of municipal control is found in the

Permit at issue here—Part 3.G.2 of the Permit states that “Per-

mittees shall posses adequate legal authority to . . . [r]equire

persons within their jurisdiction to comply with conditions in

Permittee’s ordinances, permits, contracts, model programs,

or orders (i.e. hold dischargers to its MS4 accountable for

their contributions of pollutants and flows.)[.]”

[3] Defendants’ position that they are subject to a less rig-

orous or unenforceable regulatory scheme for their storm-

water discharges cannot be reconciled with the significant

legislative history showing Congress’s intent to bring ms4

operators under the NPDES-permitting system. Even the

selectively excerpted regulatory language Defendants present

to us—“Congress was aware of the difficulties in regulating

discharges from municipal separate storm sewers . . . [and]

intended for EPA and NPDES States to develop permit

requirements that were much broader in nature than require-

ments which are traditionally found in NPDES permits”—

does not support Defendants’ view. Indeed, this excerpt is but

one paragraph from a longer section titled, “Site-Specific

Storm Water Quality Management Programs for Municipal

Systems.” 55 Fed. Reg. 48,037-38. The quoted language fol-

lows a paragraph which reads:

6

See 131 Cong. Rec. 15616, 15657 (Jun. 13, 1985) (Statement of Sen.

Wallop) (“[The regulations] can be interpreted to require everyone who

has a device to divert, gather, or collect stormwater runoff and snowmelt

to get a permit from EPA as a point source. . . . Requiring a permit for

these kinds of stormwater runoff conveyance systems would be an admin-

istrative nightmare.”).

NRDC v. COUNTY OF LOS ANGELES 3367

Section 402(p)(3)(iii) of the CWA mandates that

permits for discharges from municipal separate

storm sewers shall require controls to reduce the

discharge of pollutants to the maximum extent prac-

ticable (MEP), including management practices,

control techniques and systems, design and engineer-

ing methods, and such other provisions as the Direc-

tor determines appropriate for the control of such

pollutants.

55 Fed. Reg. 48,038 (emphasis added). The use of such

language—employing “mandates” and commands to regulate

—hardly supports Defendants’ notion that NPDES permits

are unenforceable against municipalities for their stormwater

discharges. Moreover, the paragraphs that follow the excerpt

explain why developing system-wide controls to manage

municipal stormwater is preferable to controlling pollution

through end-of-pipe effluent technologies. Id. The regulations

highlight that “Congress recognized that permit requirements

for municipal separate storm sewer systems should be devel-

oped in a flexible manner to allow site-specific permit condi-

tions to reflect the wide range of impacts that can be

associated with these discharges.” Id. Rather than evincing

any intent to treat permitting “differently” for municipalities,

the EPA merely explains why state authorities that issue per-

mits should draft site-specific rules, as the Regional Board did

here, and why water-quality standards may be preferable over

more-difficult-to-enforce effluent limitations. Avoiding

wooden permitting requirements and granting states flexibility

in setting forth requirements is not equivalent to immunizing

municipalities for stormwater discharges that violate the pro-

visions of a permit.

B. Enforcement of Mass-Emissions Violations

Part and parcel with Defendants’ argument that they are

subject to a relaxed regulatory structure is their view that the

Permit’s language indicates that mass-emissions monitoring is

3368 NRDC v. COUNTY OF LOS ANGELES

not intended to be enforced against municipal dischargers.

Defendants claim that measuring water-quality serves only an

hortatory purpose—as Defendants state, “the mass emission

monitoring program . . . neither measures nor was designed

to measure any individual permittee’s compliance with the

Permit.” This proposition, which if accepted would emascu-

late the Permit, is unsupported by either our case law or the

plain language of the Permit conditions.

[4] “The plain language of CWA § 505 authorizes citizens

to enforce all permit conditions.” Nw. Envtl. Advocates, 56

F.3d at 986 (emphasis in original). We used these words, and

emphasized “all” permit conditions, because the language of

the Clean Water Act is clear in its intent to guard against all

sources and superintendents of water pollution and “clearly

contemplates citizen suits to enforce ‘a permit or condition

thereof.’ ” Id. (citing 33 U.S.C. § 1365(f)(2), (f)(6)); see also

W. Va. Highlands Conservancy, Inc. v. Huffman, 625 F.3d

159, 167 (4th Cir. 2010) (“In other words, the statute takes the

water’s point of view: water is indifferent about who initially

polluted it so long as pollution continues to occur.”).

We have previously addressed, and rejected, municipal

attempts to avoid NPDES permit enforcement. In Northwest

Environmental Advocates, we considered a citizen-suit chal-

lenging the City of Portland’s operation of a combined sewer

system which periodically overflowed and discharged raw

sewage into two rivers. 56 F.3d at 981-82. The plaintiffs

brought suit on the basis of an NPDES permit condition

which “prohibit[ed] any discharges that would violate Oregon

water quality standards.” Id. at 985. Reviewing the history of

the 1972 amendments and the Supreme Court’s decision in

PUD No.1 of Jefferson County v. Washington Department of

Ecology, 511 U.S. 700 (1994), we recognized that Congress

had authorized enforcement of state water-quality standards,

lest municipalities be immunized on the technicality that not

all water standards can be expressed as effluent limitations.

Id. at 988-89. The overflows from the Portland sewer system

NRDC v. COUNTY OF LOS ANGELES 3369

were “caused primarily by uncontrollable events—i.e., the

amount of stormwater entering the system[.]” Id. at 989.

Because the total amount of water entering and leaving the

sewer system was unknown, it was impossible to articulate

effluent standards which would “ensure that the gross amount

of pollution discharged [would] not violate water quality stan-

dards.” Id. Only by enforcing the water-quality standards

themselves as the limits could the purpose of the CWA and

the NPDES system be effectuated. Id. at 988-90. Indeed, we

noted that prior to the 1972 incorporation of effluent limita-

tions, the Clean Water Act depended entirely on enforcement

based on water-quality standards. Id. at 986. However, trou-

bled by the “ ‘almost total lack of enforcement’ ” under the

old system, Congress added the effluent limitation standards

“not to supplant the old system” but to “improve enforce-

ment.” Id. at 986 (quoting S. Rep. No. 414, 92d Cong., 2d

Sess. 2 (1972), reprinted in 1972 U.S.C.C.A.N. 3668, 3671).

[5] Moreover, the plain language of the Permit counte-

nances enforcement of the water-quality standards when

exceedances are detected by the various compliance mecha-

nisms, including mass-emissions monitoring. First, the Permit

incorporates and adopts the Basin Plan, which sets the water-

quality standards for bacteria and contaminants for the receiv-

ing waters of Southern California, including the Watershed

Rivers. The Permit then sets out a multi-part monitoring pro-

gram for those standards, the goals of which explicitly include

“[a]ssessing compliance with this Order[.]” “Compliance”

under the Clean Water Act primarily means adhering to the

terms and conditions of an NPDES permit. EPA v. Calif., 426

U.S. at 223 (“Thus, the principal means of enforcing the pol-

lution control and abatement provisions of the Amendments

is to enforce compliance with a permit.”). The first monitor-

ing program listed in the Permit is “Mass Emissions.” While

Defendants are correct in noting that mass-emissions monitor-

ing has as one of its goals “estimat[ing] the mass emissions

from the MS4,” Defendants fail to mention that another goal,

3370 NRDC v. COUNTY OF LOS ANGELES

listed just below “estimating,” is “[d]etermin[ing] if the MS4

is contributing to exceedances of Water Quality Standards.”

Part 6.D of the Permit, titled “Duty to Comply,” lays any

doubts about municipal compliance to rest: “Each Permittee

must comply with all terms, requirements, and conditions of

this Order. Any violation of this order constitutes a violation

of the Clean Water Act . . . and is grounds for enforcement

action, Order termination, Order revocation and reissuance,

denial of an application for reissuance; or a combination

thereof[.]” This unequivocal language is unsurprising given

that all NPDES permits must include monitoring provisions

ensuring that permit conditions are satisfied. See 33 U.S.C.

§ 1318(a)(A) (“[T]he Administrator [of the EPA] shall require

the owner or operator of any point source to (i) establish and

maintain such records, (ii) make such reports, (iii) install, use,

and maintain such monitoring equipment or methods (includ-

ing where appropriate, biological monitoring methods), [and]

(iv) sample such effluents (in accordance with such methods,

at such locations, at such intervals, and in such manner as the

Administrator shall prescribe)[.]”); 40 C.F.R. § 122.44(i)(1)

(specifying the monitoring requirements for compliance,

“mass . . . for each pollutant limited in the permit,” and vol-

ume of effluent discharged); Ackels v. EPA, 7 F.3d 862, 866

(9th Cir. 1993) (“[T]he Act grants EPA broad authority to

require NPDES permitees to monitor, at such intervals as the

Administrator shall prescribe, whenever it is required to carry

out the objectives of the Act.”).

Our prior case law emphasizes that NPDES permit enforce-

ment is not scattershot—each permit term is simply enforced

as written. See Union Oil, 813 F.2d at 1491 (“It is unclear

whether the court intended to excuse these violations under

the upset defense or under a de minimis theory. In either

event, the district court erred. The Clean Water Act and the

regulations promulgated under it make no provision for ‘rare’

violations.”); see also United States v. CPS Chem. Co., 779

F. Supp. 437, 442 (D. Ark. 1991) (“For enforcement pur-

NRDC v. COUNTY OF LOS ANGELES 3371

poses, a permittee’s [Discharge Monitoring Reports] consti-

tute admissions regarding the levels of effluents that the

permittee has discharged.”). As we explained in Union Oil,

Congress structured the CWA to function by self-monitoring

and self-reporting of violations to “ ‘avoid the necessity of

lengthy fact finding, investigations, and negotiations at the

time of enforcement.’ ” 813 F.2d at 1492 (quoting S. Rep. No.

414, 92d Cong., 1st Sess. 64, reprinted in 1972 U.S.C.C.A.N.

3668, 3730). When self-reported exceedances of an NPDES

permit occur, the Clean Water Act allows citizens to bring

suit to enforce the terms of the Permit.

[6] In sum, the Permit’s provisions plainly specify that the

mass-emissions monitoring is intended to measure compli-

ance and that “[a]ny violation of this Order” is a Clean Water

Act violation. The Permit is available for public inspection to

aid this purpose. Accordingly, we agree with the district

court’s determination that an exceedance detected through

mass-emissions monitoring is a Permit violation that gives

rise to liability for contributing dischargers.

II. Evidence of Discharge

We next turn to the factual issue on which the district court

granted summary judgement in favor of Defendants—whether

any evidence in the record shows Defendants discharged

stormwater that caused or contributed to water-quality viola-

tions. The district court determined that a factual basis was

lacking:

Plaintiffs failed to present evidence that the

standards-exceeding pollutants passed through the

Defendants’ MS4 outflows at or near the time the

exceedances were observed. Nor did Plaintiffs pro-

vide any evidence that the mass emissions stations

themselves are located at or near a Defendant’s out-

flow. Plaintiffs do represent in their supplemental

briefing that their monitoring data reflects sampling

3372 NRDC v. COUNTY OF LOS ANGELES

conducted at or near Defendants’ outflows. . . . How-

ever, the declarations on which Plaintiffs rely do not

clearly indicate that the sampling in question was

conducted at an outflow (as opposed to in-stream).

...

In short, Plaintiffs have failed to follow the Court’s

instructions and present data which could establish

that “standards-exceeding pollutants . . . passed

through Defendants’ MS4 outflows at or near the

time the exceedances were observed.” That the pol-

lutants must have passed through an outflow is key

because, as the Court found in the March 2 Order,

standards-exceeding pollutants must have passed

through a County or District outflow in order to con-

stitute a discharge under the Clean Water Act and

the Permit.

[7] Plaintiffs have argued throughout this litigation that the

measured exceedances in the Watershed Rivers ipso facto

establish Permit violations by Defendants. Because these

points are designated in the Permit for purposes of assessing

“compliance,” this argument is facially appealing. But the

Clean Water Act does not prohibit “undisputed” exceedances;

it prohibits “discharges” that are not in compliance with the

Act (which means in compliance with the NPDES). See 33

U.S.C. § 1311(a); see also Miccosukee Tribe, 541 U.S. at 102.

While it may be undisputed that exceedances have been

detected, responsibility for those exceedances requires proof

that some entity discharged a pollutant. Indeed, the Permit

specifically states that “discharges from the MS4 that cause

or contribute to the violation of the Water Quality Standards

or water quality objectives are prohibited.”

“[D]ischarge of pollutant” is defined as “any addition of

any pollutant to navigable waters from any point source[.]” 33

U.S.C. § 1362(12). Under the Clean Water Act, the MS4 is a

NRDC v. COUNTY OF LOS ANGELES 3373

“Point Source.” See 33 U.S.C. § 1342(p)(2), 1362(14). “Navi-

gable waters” is used interchangeably with “waters of the

United States.” See Headwaters, Inc. v. Talent Irrigation

Dist., 243 F.3d 526, 532 (9th Cir. 2001). Those terms mean,

inter alia, “[a]ll waters which are currently used, were used

in the past, or may be susceptible to use in interstate or for-

eign commerce, including all waters which are subject to the

ebb and flow of the tide[.]” 40 C.F.R. § 122.2. The Watershed

Rivers are all navigable waters.

Thus, the primary factual dispute between the parties is

whether the evidence shows any addition of pollutants by

Defendants to the Watershed Rivers. Defendants contend that

the “District does not generate any of the pollutants in the sys-

tem, but only transports them from other permitted and non-

permitted sources.” Moreover, Defendants contend that by

measuring mass-emissions downstream from where the pollu-

tants entered the sewer system, it is not possible to pinpoint

which entity, if any, is responsible for adding them to the riv-

ers. In the words of the district court, there is no evidence that

“standards-exceeding pollutants . . . passed through Defen-

dants’ MS4 outflows at or near the time the exceedances were

observed.” Plaintiffs counter that the monitoring stations are

downstream from hundreds of miles of storm drains which

have generated the pollutants being detected. To Plaintiffs, it

is irrelevant which of the thousands of storm drains were the

source of polluted stormwater—as holders of the Permit,

Defendants bear responsibility for the detected exceedances.

Resolving this dispute over whether Defendants added pol-

lutants depends heavily on the level of generality at which the

facts are viewed. At the broadest level, all sides agree with

basic hydrology—upland water becomes polluted as it runs

over urbanized land and begins a downhill flow, first through

municipal storm drains, then into the MS4 which carries the

water (and everything in it) to the Watershed Rivers, which

flow into the Pacific Ocean. More narrowly, it is, as Plaintiffs

concede, impossible to identify the particular storm drains

3374 NRDC v. COUNTY OF LOS ANGELES

that had, for instance, some fecal bacteria which contributed

to a water-quality violation. Ultimately, each side fails to

rebut the other’s arguments. Defendants ignore their role as

controllers of thousands of miles of MS4 and the stormwater

it conveys7 by demanding that Plaintiffs engage in the Sisy-

phean task of testing particular storm drains in the County for

the source of each pollutant. Likewise, Plaintiffs did not

enlighten the district court with sufficient evidence for certain

claims and assumed it was obvious to anyone how stormwater

makes its way from a parking lot in Pasadena into the MS4,

through a mass-emissions station, and then to a Watershed

River.

[8] Despite shortcomings in each side’s arguments, there is

evidence in the record showing that polluted stormwater from

the MS4 was added to two of the Watershed Rivers: the Los

Angeles River and San Gabriel River. Because the mass-

emissions stations, as the appropriate locations to measure

compliance, for these two rivers are located in a section of the

MS4 owned and operated by the District, when pollutants

were detected, they had not yet exited the point source into

navigable waters. As such, there is no question over who con-

trolled the polluted stormwater at the time it was measured or

who caused or contributed to the exceedances when that water

was again discharged to the rivers—in both cases, the District.

As a matter of law and fact, the MS4 is distinct from the two

navigable rivers; the MS4 is an intra-state man-made

construction—not a naturally occurring Watershed River. See

Headwaters, 243 F.3d at 533 (“The EPA has interpreted

7

Defendants’ untenable position about their responsibility for discharges

is confirmed by the testimony of their Rule 30(b)(6) witness:

Question: What if those flows [which exceeded water-quality

standards] were so polluted with oil and grease that they were on

fire as they came out of the system? Would your view be the

same, that the District is not contributing to exceedances?

Answer: That the system the District maintains is not contributing

to, yes.

NRDC v. COUNTY OF LOS ANGELES 3375

‘waters of the United States’ to include ‘intrastate lakes, riv-

ers, streams (including intermittent streams) . . . the use, deg-

radation, or destruction of which would affect or could affect

interstate or foreign commerce’ and ‘tributaries of [those]

waters.’ ” (quoting 40 C.F.R. § 122.2(c), (e)). At least some

outfalls for the MS4 were downstream from the mass-

emissions stations. See 40 C.F.R. § 122.26(9) (“Outfall means

a point source . . . at the point where a municipal separate

storm sewer discharges to waters of the United States . . . .”).

The discharge from a point source occurred when the still-

polluted stormwater flowed out of the concrete channels

where the Monitoring Stations are located, through an outfall,

and into the navigable waterways. We agree with Plaintiffs

that the precise location of each outfall is ultimately irrelevant

because there is no dispute that MS4 eventually adds storm-

water to the Los Angeles and San Gabriel Rivers downstream

from the Monitoring Stations.

Although the District argues that merely channeling pollu-

tants created by other municipalities or industrial NPDES per-

mittees should not create liability because the District is not

an instrument of “addition” or “generation,”8 the Clean Water

Act does not distinguish between those who add and those

who convey what is added by others—the Act is indifferent

to the originator of water pollution. As Judge Wilkinson of

the Fourth Circuit cogently framed it: “[The Act] bans ‘the

discharge of any pollutant by any person’ regardless of

whether that ‘person’ was the root cause or merely the current

superintendent of the discharge.” Huffman, 625 F.3d at 167

(emphasis added). “Point sources” include instruments that

channel water, such as “any pipe, ditch, channel, tunnel, con-

8

This issue does not usually arise in Clean Water Act litigation because

it is generally assumed that ms4s “discharge” stormwater. See, e.g., Miss.

River Revival v. Adm’r, E.P.A., 107 F. Supp. 2d 1008, 1009 (D. Minn.

2000) (“These lawsuits involve the discharge of storm water into the Mis-

sissippi River through the Cities’ storm sewers. Thus, and this is not in

dispute, the storm water discharge is subject to the NPDES permitting

requirements.”).

3376 NRDC v. COUNTY OF LOS ANGELES

duit, well, discrete fissure, container, rolling stock, concen-

trated animal feeding operation, or vessel or other floating

craft, from which pollutants are or may be discharged.” 33

U.S.C. § 1362(14) (emphasis added). The EPA’s regulations

further specify that ms4 operators require permits for channel-

ing: “Discharge of a pollutant . . . includes additions of pollu-

tants into waters of the United States from: surface runoff

which is collected or channelled by man; discharges through

pipes, sewers, or other conveyances owned by a State [or]

municipality.” 40 C.F.R. § 122.2 (emphasis added). “[M]ost

urban runoff is discharged through conveyances such as sepa-

rate storm sewers or other conveyances which are point

sources under the CWA. These discharges are subject to the

NPDES program.” 55 Fed. Reg. 47,991. Finally, the Supreme

Court stated in Miccosukee Tribe that “the definition of ‘dis-

charge of a pollutant’ contained in § 1362(12) . . . includes

within its reach point sources that do not themselves generate

pollutants.” 541 U.S. at 105 (emphasis added).

[9] Accordingly, the district court erred in stating that

“Plaintiffs have not provided the Court with the necessary

evidence to establish that the Los Angeles River and the San

Gabriel River below the mass emissions monitoring stations

are bodies of water that are distinct from the MS4 above these

monitoring stations.” In light of the evidence that the Los

Angeles River and San Gabriel River mass-emission stations

are in concrete portions of the MS4 controlled by the District,

it is beyond dispute that the District is discharging pollutants

from the MS4 to the Los Angeles River and San Gabriel

River in violation of the Permit. Thus, Plaintiffs are entitled

to summary judgment on Claims 2 and 3.

[10] However, we agree with the district court that, as the

record is currently constituted, it is not possible to mete out

responsibility for exceedances detected in the Santa Clara

River and Malibu Creek (Claims 1 and 4). Like the district

court, we are unable to identify the relationship between the

MS4 and these mass-emissions stations. From the record, it

NRDC v. COUNTY OF LOS ANGELES 3377

appears that both monitoring stations are located within the

rivers themselves. Plaintiffs have not endeavored to provide

the Court with a map or cogent explanation of the inter-

workings or connections of this complicated drainage system.

We recognize that both the Santa Clara and Malibu Creek

Monitoring Stations are downstream from hundreds or thou-

sands of storm drains and MS4 channels. It is highly likely,

but on this record nothing more than assumption, that polluted

stormwater exits the MS4 controlled by the District and the

County, and flows downstream in these rivers past the mass-

emissions stations. To establish a violation, Plaintiffs were

obligated to spell out this process for the district court’s con-

sideration and to spotlight how the flow of water from an ms4

“contributed” to a water-quality exceedance detected at the

Monitoring Stations. See, e.g., Nicholas Acoustics & Specialty

Co. v. H & M Constr. Co., 695 F.2d 839, 846-47 (5th Cir.

1983) (“We wish to emphasize most strongly that it is fool-

hardy for counsel to rely on a court to find disputed issues of

material fact not highlighted by counsel’s paperwork; a party

that has suffered the consequences of summary judgment

below has a definite and specific duty to point out the thwart-

ing facts . . . . Judges are not ferrets!”). Contrary to Plaintiffs’

contention, this would not require independent sampling of

the District’s outfalls. Indeed, simply ruling out the other con-

tributors of stormwater to these two rivers or following up to

vague answers given by Defendants’ witnesses could have

satisfied Plaintiffs’ evidentiary obligation. In the alternative,

prior to commencing actions like this one, Plaintiffs could

heed the district court’s sensible observation and, for purposes

of their evidentiary burden, “sample from at least one outflow

that included a standards-exceeding pollutant[.]”

Finally, for all four Watershed Rivers, the record is silent

regarding the path stormwater takes from the unincorporated

land controlled by the County to the Monitoring Stations. The

district court correctly demanded evidence for the County’s

liability, which Plaintiffs did not proffer.

3378 NRDC v. COUNTY OF LOS ANGELES

[11] In sum, Plaintiffs were entitled to summary judgment

on Claims 2 and 3 against the District for the Los Angeles

River and San Gabriel River because (1) the Monitoring Sta-

tions for these two rivers are located in a portion of the MS4

owned and operated by the District, (2) these Monitoring Sta-

tions detected pollutants in excess of the amount authorized

by the NPDES permit, and (3) this polluted water “dis-

charged” into the Los Angeles River and San Gabriel River.

The Plaintiffs, however, have not met their burden on sum-

mary judgment for their other claims because they did not

provide the district court with evidence that the MS4 con-

trolled by the District “discharged” pollutants that passed

through the Monitoring Stations in the Santa Clara River and

Malibu Creek, or that ms4s controlled by the County “dis-

charged” pollutants that passed through the Monitoring Sta-

tions in any of the four rivers in question.

CONCLUSION

The district court’s judgment for Defendant District on

Claims 2 and 3 of the First Amended Complaint is

REVERSED, and this matter is REMANDED to the district

court for further proceedings consistent with this opinion. The

district court’s grant of summary judgment for Defendant Dis-

trict on Claims 1 and 4, and for Defendant County on all

Watershed Claims, is AFFIRMED.

AFFIRMED IN PART, REVERSED IN PART, and

REMANDED.

Each party shall bear its own costs on appeal.