Committee to Save Mokelumne River, a California Non-Profit Corporation v. East Bay Municipal Utility District, a California Municipal Utility District

The East Bay Municipal Utility District and the members of the California Regional Water Quality Control Board, Central Valley Region, defendants below, appeal the district court’s order granting partial summary judgment in favor of the Committee to Save the Mokelumne River. The district court, in a well-written, well-reasoned opinion, found that defendants owned and operated the Penn Mine facility, and that the facility discharged pollutants into the Camanche Reservoir and Mokelumne River without a permit, in violation of the Clean Water Act, 33 U.S.C. §§ 1251-1376 . On appeal, defendants contend that (1) Mine Run Dam, part of the Penn Mine facility, is not subject to the discharge permit requirements of the Clean Water Act; (2) the Water Board is immune from liability under the Act; and (3) summary judgment was improper because a triable issue of material fact exists whether there has been an “addition of pollutants” within the meaning of the Clean Water Act.

We have jurisdiction under 28 U.S.C. § 1292 (b). We affirm.

BACKGROUND

The Penn Mine property is the site of an abandoned copper and zinc mine that operated intermittently from the 1860s through the 1950s. The companies…

concurring:

I concur, but write separately because my position may be somewhat more narrowly based than the position of the majority.

As I understand it, the pollutants in question used to be carried into the Mokelumne River by Mine Run Creek and Hinkley Run Creek. The water from those creeks, and other water, ran across the tailings from the mines and became polluted. The creeks then carried that water to the river. The project has diverted those creeks so that they will stay clean and has captured polluted runoff so that it can be released in a more measured way. In other words, it seems that unregulated quantities of pollutants were flowing into the river and causing fish kills and the like long before EBMUD and the Board did anything at all. Those entities sought to eliminate the disasters caused by that unregulated flow and that is why the project was built. The result has been a significant improvement in the river’s environment and a boon to aquatic life.

The majority appears to agree with appellee’s position that the project is a point source in the sense that the Environmental Protection Agency could not determine that a NPDES permit was not required. I am not so sure.…

13 F.3d 305 24 Envtl. L. Rep. 20 ,225 COMMITTEE TO SAVE MOKELUMNE RIVER, a California non-profit corporation, Plaintiff-Appellee, v. EAST BAY MUNICIPAL UTILITY DISTRICT, a California Municipal Utility District, et al., Defendants-Appellants. No. 93-15999. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 1, 1993. Decided Dec. 29, 1993. Edward Berlin, Swidler & Berlin, Washington, DC, for defendant-appellant East Bay Mun. Utility Dist. Sara J. Drake, Deputy Atty. Gen., Atty. General's Office, Sacramento, CA, for defendant-appellant California Water Quality Control Bd. Members, Central Valley Region. Adria Y. LaRose, William S. Curtiss, Sierra Club Legal Defense Fund, Inc., Maria Savasta Kennedy, Michael W. Bien, Rosen, Bien & Asaro, San Francisco, CA, for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before: REAVLEY, * PREGERSON, and FERNANDEZ, Circuit Judges. PREGERSON, Circuit Judge: 1 The East Bay Municipal Utility District and the members of the California Regional Water Quality Control Board, Central Valley Region, defendants below, appeal the district court's order granting partial…