ELR Citation: ELR 20283
No(s). 07-1144 (D. Or. Dec 1, 2009)

A district court denied a rifle club's motion to dismiss an individual's claims against it for discharging pollutants into wetlands and waterways without a NPDES permit and disposing of and storing hazardous lead waste without a RCRA permit. The club argued that the wetlands and other waters on their property are not jurisdictional waters under the CWA. But the individual set forth facts sufficient to demonstrate that all wetlands on the club's property maintain a significant nexus with the Clackamas River, a navigable water, and genuine issues of material fact remain as to whether a creek on the club's property is a tributary to the Clackamas River. The club also argued that the RCRA claim should be dismissed because lead shot is not "hazardous waste" as defined by the statute. Specifically, it asserted that because the firing of munitions is within the expected use of the product, lead munitions are not discarded and do not constitute solid waste. But the club has been depositing lead into the land, wetlands, and waterways of its outdoor shooting range since 1955, and a question of fact remains as to whether the club has ever reclaimed the lead. And while it is true that lead shot could be collected, remelted, and reused as munitions, a dispute remains as to whether the club has ever actively pursued such recycling initiatives. The court also held that the individual's state-law claims against the club for filling in wetlands were not moot.