ELR Citation: 51 ELR 20177
No(s). 20-55420 and 20-55678 (9th Cir. Sep 20, 2021)

The Ninth Circuit, 2-1, vacated and remanded a district court ruling in a CWA citizen suit concerning a clay manufacturer's discharges. Environmental groups argued the manufacturer illegally discharged pollutants into navigable waters, failed to monitor the discharge as required by its NPDES permit, and violated the permit conditions by failing to report violations. The district court granted summary judgment for the groups with respect to their illegal discharge and permit violation claims, and a jury returned a defense verdict on the other claims. The appellate court held that the district court erred in interpreting the U.S. Supreme Court's 1987 ruling in Gwaltney v. Chesapeake Bay Foundation as requiring proof of an ongoing permit discharge violation as a prerequisite to a CWA citizen suit asserting ongoing monitoring and reporting violations. It further found that the Court's ruling in County of Maui v. Hawaii Wildlife Fund (2020) as to what constitutes a qualifying jurisdictional discharge was relevant, and held that the parties deserved the ability to address whether the "indirect" discharge admitted by the manufacturer was the "functional equivalent" of a direct discharge into waters of the United States or whether that required discharge could otherwise be established. It vacated the district court's judgment and remanded for further proceedings.