United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, District Judge.
This matter comes before the court on Plaintiff's motion for reconsideration of the court's September 16, 2013 order granting summary judgment in favor of Defendant. For the reasons stated below, the court concludes that its prior order was based in part on an error of law, and the court thus VACATES that order. The court concludes, however, that Defendant is nonetheless entitled to summary judgment on grounds that the court did not reach in its prior order. The court therefore GRANTS the motion for reconsideration (Dkt. # 32) solely to the extent that it requests that the court correct an error of law. The court directs the clerk to VACATE its September 16, 2013 judgment and to enter a new judgment for Defendant in accordance with this order.
Plaintiff, the Citizen's Alliance for Property Rights (the "Alliance"), contends that the City of Duvall is violating the Clean Water Act (33 U.S.C. Ch. 26, "CWA") by discharging pollutants onto property that two of its members, Steve and Rhonda Mills, own. There is no dispute that the City discharges stormwater onto the Mills Property, the only dispute is whether that discharge violates the CWA.
The court granted the City's motion for summary judgment for two reasons. First, it concluded that the Alliance had offered no evidence that the City was discharging stormwater into the navigable waters of the United States. Second, it concluded that the Alliance could not state a CWA claim merely by alleging that the City did not comply with its National Pollutant Discharge Elimination Permit ("NPDES Permit").
The Alliance moved for reconsideration on three grounds. It contended that it had presented evidence of a discharge of stormwater into the navigable waters of the United States. It contended that the CWA permits citizen suits for violations of an NPDES Permit. Finally, it claimed that the court made its ruling because of "assumptions and/or inferences about [the Alliance]'s motives that were made in favor of [the City]... in violation of the standard on summary judgment." Pltf.'s Mot. (Dkt. # 32) at 1.
A party moving for reconsideration must meet a high standard:
Motions for reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence.
Local Rules W.D. Wash. LCR 7(h)(1).
For the reasons stated herein, the court concludes that the Alliance satisfied this standard only to the extent that it argues, correctly, that the CWA permits citizen suits for violations of an NPDES permit without proof of a nexus between the violation and the navigable waters of the United States. The court erred when it held otherwise. The City is nonetheless entitled to summary judgment, however, because the Alliance did not offer evidence from which a finder of fact could conclude that the City has violated its NPDES permit.
A. The NPDES Permit System and CWA Citizen Suits
There is more than one way to violate the CWA, and more than one way for a citizen (or group of citizens) to sue for those violations. The citizen suit provision of the CWA authorizes suits against local governments who are "alleged to be in violation of... an effluent standard or limitation under this chapter." 33 U.S.C. § 1365(a)(1). The Act is explicit as to seven categories of "effluent standard or limitation under this chapter" whose violation will satisfy the citizen suit provision. 33 U.S.C. § 1365(f)(1)-(7). Two are relevant to this case: "an unlawful act under subsection (a) of section 1311" and "a permit or condition thereof issued under section 1342...." 33 U.S.C. § 1365(f)(1) & (f)(7). Subsection 1311(a) makes it unlawful to discharge any pollutant except in compliance with various provisions of the CWA, and it is this provision that the City focused on in its summary judgment motion. 33 U.S.C. § 1311(a) ("Except as in compliance with this section ...