ELR Citation: ELR 21080
No(s). 93-3380 (7th Cir. May 18, 1994)

The court upholds a district court's dismissal of a municipality's citizen suit under the Federal Water Pollution Control Act (FWPCA) and Clean Air Act (CAA) against a company possessing state and local permits necessary to construct a distribution center. The court holds that the CAA §304(a)(3) claim, for which plaintiff must show that the Act requires the center to have a major source permit, fails because the state properly classified the center as a minor source. The center itself does not emit pollutants, and emissions of motor vehicles that travel to and from the center are not attributable to the center itself. The court holds that the FWPCA claim fails because the center's discharges of rainwater runoff into an artificial retention pond are not discharges into "waters of the United States" even if the discharges eventually drain into groundwater. The U.S. Environmental Protection Agency's (EPA's) regulatory definition of "waters of the United States" refers only to natural ponds. And although groundwater may be hydrologically connected to surface waters, neither the FWPCA's nor EPA's definition gives the federal government authority over discharges into groundwater.

Counsel for Plaintiff
William B. Rush
850 Main St., Bridgeport CT 06604
(414) 271-0130

Counsel for Defendants
Jon P. Axelrod
Dewitt & Porter
Manchester Pl., Two E. Mifflin St., Ste. 600, Madison WI 53703
(608) 255-8891

Before Easterbrook, Manion, and McDade,^* JJ.