Summary of a Recent
Judicial Development in
Environmental Law

Hydrologic Connection to Navigable Waters Alone Insufficient
to Classify as Waters of the United States

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Environmental Protection Information Center v. Pacific Lumber Co., 469 F. Supp. 2d 803 (N.D. Cal. 2007), the United States District Court for the Northern District of California denied the parties' cross-motions for partial summary judgment. An environmental organization brought a citizen suit against two lumber companies alleging violations of the Clean Water Act (CWA). The court held that the organization sufficiently demonstrated a hydrological connection between navigable water and streams at issue; however, without more, a hydrological connection was not enough to classify the streams as navigable waters subject to CWA regulation. Additionally, the court held that the plaintiff organization had organizational standing to sue on behalf of its members because multiple members had individualized standing sufficiently germane to the organization's purpose.

Background

Bear Creek is a tributary located "several miles upstream of Scotia, California," near Eel River. Id. at 809. The two water bodies combined to form a large watershed, most of which was owed by Pacific Lumber Company (PALCO) and its wholly-owned subsidiary, defendant Scotia Pacific Lumber Company. Id. PALCO used the watershed to carry out its logging activities. Id. The plaintiff claimed that PALCO's logging activities in the watershed had "spurred a dramatic increase in the amount of sediment deposited in Bear Creek." Id. The plaintiff asserted that PALCO's activities "violate[d] various provisions of the Clean Water Act," in particular, the NPDES program. Id. To compel PALCO's compliance with the CWA, the plaintiff "brought a citizen-suit action under section 505(a) of the CWA, 33 U.S.C. section 1365(a), against PALCO, the EPA, and then-EPA Administrator Christine Todd Whitman." Id. at 811.

Arguments

The plaintiff claimed that "PALCO's drainage system employ[ed] a number of unpermitted point sources to discharge pollutants." Id. at 811-12.

PALCO claimed that the plaintiff did not have standing to bring the instant suit because it "cannot demonstrate an injury-in-fact on its own behalf because its services ha[d] not been diminished and because an informational injury [was] insufficient to overcome the injury-in-fact requirement." Id. at 812, 814.

Analysis and Holdings

The court first addressed whether the plaintiff organization had standing to bring suit. Id. at 812. An organization may have standing to sue on its own behalf "'to vindicate whatever rights and immunities the association itself may enjoy,'" or on behalf of its members "so long as the challenged infractions adversely affect its members' associational ties." Id. at 813 (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)). In this case, the plaintiff was able to show that one of its members had visited the Bear Creek reservoir "frequently for the purposes of both recreation and . . . conservation interests." Id. at 815. The plaintiff alleged that the member's "recreational and conservation interests [were] harmed by the sediment deposited." Id. Additionally, that member asserted that his injuries were caused by PALCO's failure to secure an NPDES permit and could be "redressed if this court enjoin[ed] PALCO from discharging stormwater without [an] NDPES permit." Id. Because a member of the plaintiff's organization had standing and the member's injuries were germane to the plaintiff organization's stated purpose, the court held that the plaintiff had organizational standing. Id.

The court then addressed the plaintiff's motions for partial summary judgment. Id. at 818. The plaintiff argued that its motions should be granted because PALCO had violated both § 301(a) and § 402(p) of the CWA. Id. (citing 33 U.S.C. §§ 1311(a) and 1342(p)). PALCO argued that "to prove the addition of a pollutant, [the plaintiff] must conduct sampling of the runoff before it reached the discharge locations to prove that the sediment was added at [] that discharge location." Id. Disagreeing with PALCO, the court stated that there was no such requirement. Id. Ultimately, the court found genuine issues of material fact related to five of the discharge locations, but it held that the plaintiff had "sufficiently established the element of discharge with respect to the other locations." Id. at 819. The court took the same position regarding the presence of pollutants at the discharge sites. Id. at 819-20.

The parties disagreed on whether "from a point source" was one requirement or two. Id. at 820. PALCO argued that "from a point source" created two distinct requirements: "from" and "point source." Id. The court found that "from a point source" was better addressed as a single requirement. Id. Because the plaintiff did not show water was channeled from each of the alleged discharge locations, the court held that the plaintiff had not "proven that the twelve locations [were] point sources." Id. at 822.

Finally, the court addressed whether the streams at issue were navigable waters. Id. at 822. The parties agreed that Bear Creek was a navigable water body; however, they disagreed as to whether the plaintiff's evidentiary proffer was sufficient to classify the streams as navigable waters. Id. The plaintiff "offered evidence [from] PALCO's GIS maps, which it claim[ed] [was] the best information available, to demonstrate a hydrological connection between each of the streams in dispute and Bear Creek." Id. at 823. PALCO argued that firsthand observations were required to establish a hydrological connection. Id. After reviewing the proffered evidence, the court held that "PALCO ha[d] not put forth specific facts to rebut [the plaintiff's] showing and create a genuine factual dispute as to the hydrologic connection between the streams and Bear Creek." Id. However, the court held that without more, a hydrological connection between the creek and the streams was not sufficient to classify the streams as navigable waters. Id. Because the plaintiff failed to provide any "evidence that the streams significantly affect[ed] the chemical, physical, and biological integrity of other covered waters," the court found that the plaintiff had failed to establish that the streams were navigable waters. Id. at 824.

For these reasons, the court denied PALCO's motion for summary judgment with respect to standing and denied the plaintiff's motion for partial summary judgment on the issue of the defendants' liability. Id. at 827.

The case was decided on January 8, 2007.