ELR Citation: ELR 20225
No(s). 93-15999 (9th Cir. Dec 29, 1993)

The court affirms a district court judgment that municipal water suppliers, who constructed a reservoir and dam to collect toxic surface runoff from rivers flowing through an abandoned mine site, discharged a pollutant within the meaning of the Federal Water Pollution Control Act (FWPCA) when drainage that collected in the reservoir passed into the Mokelumne River in California. The court holds that the suppliers "added," and thus discharged, a pollutant into the river by collecting the surface runoff and either channeling it through a valve or allowing it to spill over. The court distinguishes cases holding that the dams at issue did not discharge pollutants, because unlike those dams, this facility does not merely pass pollution from one navigable body of water to another. Moreover, surface runoff is expressly listed under the regulatory definition of "discharge of a pollutant" set forth at 40 C.F.R. §122.2. The court holds that the district court was not precluded from granting summary judgment to plaintiff citizen group on the issue of liability, because the suppliers failed to raise a genuine issue of material fact regarding whether there has been an addition of pollutants. Contrary to the suppliers' assertion, the FWPCA does not require a showing that their facility is discharging pollution into the river at greater-than historical levels. The court also holds that the FWPCA does not expressly exempt governments from liability. Finally, the court holds that the Eleventh Amendment to the U.S. Constitution provides no immunity from suit, because the plaintiff seeks only prospective equitable relief and the district court may consider the suppliers' past conduct as it relates to ongoing or future violations.

Counsel for Plaintiff
Adria Y. LaRose, William S. Curtiss
Sierra Club Legal Defense Fund
180 Montgomery St., Ste. 1400, San Francisco CA 94104
(415) 627-6700

Counsel for Defendants
Edward Berlin
Swidler & Berlin
3000 K St. NW, Ste. 300, Washington DC 20007
(202) 944-4300

Pregerson, J. (before Reavley^* and Fernandez, JJ.)