Bang v. Lacamas Shores Homeowners Ass'n

638 F.Supp.3d 1223

Steven D. BANG, an individual, Plaintiff, v. LACAMAS SHORES HOMEOWNERS ASSOCIATION,a Washington nonprofit corporation, Defendant.

No. 3:21-cv-05834-BJR

United States District Court, W.D. Washington, at Tacoma

Signed October 31, 2022

Jesse G. DeNike, Samuel Wilmore Plauche, IV, Plauche & Carr LLP, Seattle, WA, for Plaintiff.

David Max Phillips, Vial Fotheringham LLP, Lake Oswego, OR, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S AND DEFENDANT'S CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

Barbara Jacobs Rothstein, United States District Court Judge

I. INTRODUCTION

This is a citizen suit brought by Plaintiff Steven D. Bang ("Plaintiff") against Defendant Lacamas Shores Homeowners Association (the "HOA" or "Defendant") under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (the "Clean Water Act" or "CWA"), seeking an injunction to remedy Defendant's allegedly illegal discharge of pollutants into Lacamas Lake and its abutting wetlands. Presently before the Court are the parties' cross-motions for partial summary judgment, each seeking two discrete rulings on legal issues that bear on Plaintiff's claim. See Dkt. 17 ("Pl. Mot."); Dkt. 22 ("Def. Mot."). Having reviewed the motions, the record of the case, and the relevant legal authorities, the Court GRANTS in part and DENIES in part Plaintiff's motion, and GRANTS in part and DENIES in part Defendant's motion. The reasoning for the Court's decision follows.

II. BACKGROUND

A. Lacamas Shores and the Biofilter

Lacamas Shores is a residential community located on the southwest shore of Lacamas Lake in Clark County, Washington. Defendant, the HOA of that community, owns and is responsible for maintaining a wetland biofilter stormwater treatment system (the "Biofilter") that was constructed in the late 1980s in order to obtain the necessary permits to develop Lacamas Shores. In short, the Biofilter is a man-made wetland that uses vegetation (e.g., grasses and aquatic plants) to sequester and remove pollutants introduced by stormwater runoff from the development. Stormwater collected in drainage basins is directed - through various mechanisms, including underground pipes and a "bubbler" system - into the Biofilter, and then is discharged via two separate "outlets" into Lacamas Lake. See, e.g., Declaration of John McConnaughey (Dkt. 19), Ex. 2. Plaintiff claims that, while the Biofilter had been properly maintained for several years, it has since fallen into disrepair because of the HOA's failure to plant new vegetation and harvest decomposing vegetation. Pl. Mot. at 10-11. According to Plaintiff, the growth and decomposition of inappropriate vegetation in the Biofilter has caused it to generate new pollutants that are then released into Lacamas Lake and the naturally occurring wetlands abutting it. Thus, Plaintiff asserts, "the HOA's lack of maintenance of the Biofilter has transformed the Biofilter from a system that removes pollutants into a system that adds pollutants." Id.

B. Procedural Posture

Plaintiff filed this lawsuit on November 12, 2021 under the CWA's citizen suit enforcement provisions. Complaint ("Compl.," Dkt. 1); see 33 U.S.C. § 1365. In it, he claims that Defendant has been violating Section 301(a) of the CWA by discharging pollutants from the Biofilter into Lacamas Lake and abutting wetlands without a National Pollutant Discharge Elimination System ("NPDES") permit. See 33 U.S.C. § 1311(a) ("the discharge of any pollutant by any person shall be unlawful"). Plaintiff's lawsuit seeks, in addition to civil penalties and other forms of relief, an injunction requiring the HOA to cease making the alleged discharges, remediate the alleged environmental damage, and develop quality assurance procedures to ensure future compliance with the CWA.

On August 31, 2022, the parties filed cross-motions for partial summary judgment, seeking several discrete legal rulings on issues relevant to this case. Plaintiff and Defendant each filed oppositions to the other's motion (Dkt. 23 ("Pl. Opp."); Dkt. 25 ("Def. Opp")), and each replied (Dkts. 27-28).

III. SUMMARY JUDGMENT STANDARD OF REVIEW

"The standard for summary judgment is familiar: 'Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact.' " Zetwick v. County of Yolo, 850 F.3d 436, 440 (9th Cir. 2017) (quoting United States v. JP Morgan Chase Bank Account No. Ending 8215, 835 F.3d 1159, 1162 (9th Cir. 2016)). A court's function on summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If there is not, summary judgment is warranted.

IV. DISCUSSION

Neither of the parties' cross-motions seek summary judgment on Plaintiff's Clean Water Act claim. Instead, the motions each seek two separate rulings on legal issues that bear on Plaintiff's ability to prevail on, and Defendant's ability to mount a defense to, the claim. The Court will first review the sought rulings in Plaintiff's motion, and then will do the same for Defendant's motion.

A. Plaintiff's Motion for Partial Summary Judgment

Plaintiff, first, asks the Court to rule that "the HOA can be liable under the CWA for its pollutant discharges even if the Biofilter is a water of the United States." See Pl. Mot. at 2. Second, Plaintiff asks the Court to rule that pollutant discharges from the Biofilter are not covered by a specific NPDES permit and, therefore, are not authorized. See id. As discussed below, the Court disagrees with Plaintiff on the first issue, but agrees with him on the second.

1. Whether Plaintiff Can Prevail on its Clean Water Act Claim if the Biofilter is Classified as a Water of the United States

The Clean Water Act defines the "discharge of a pollutant" to mean, as relevant here, "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). Consistent with that definition, "[t]o establish liability for an unpermitted discharge under the CWA, plaintiff must show that defendant (1) discharged (2) a pollutant (3) to navigable waters (4) from a point source (5) without permit authorization." Puget Soundkeeper All. v. Whitley Mfg. Co., 145 F. Supp. 3d 1054, 1055 (W.D. Wash. 2015) (citing Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 532 (9th Cir. 2001)). The CWA defines "navigable waters" to "mean[ ] the waters of the United States." 33 U.S.C. § 1362(7). A "point source," in turn, is defined as: "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." Id. § 1362(14).

As noted above, Plaintiff's CWA claim is premised on allegations that the HOA has been "discharging pollutants from the Biofilter" to Lacamas Lake and the wetlands abutting it. See Compl. ¶ 53. He alleges that "the Biofilter as a whole is a point source, and each discrete outfall" (i.e., each of the Biofilter's two outlets) "is a separate point source." Id. ¶ 54. The parties dispute whether the Biofilter is a water of the United States as a factual matter, but they assume it is for purposes of the present cross-motions. See, e.g., Pl. Mot. at 12-13; Def. Mot. at 1-2. Given these allegations and the assumption at hand, Plaintiff's motion seeks a legal ruling that he can prevail on his claim even if the Biofilter is classified as a water of the United States as well as a point source. See Pl. Mot. at 16-18. Defendant argues that this theory of liability is incompatible with the CWA. See Def. Mot. at 7-11. The Court agrees with Defendant.

While the Court makes no determination as to whether Biofilter and its two outlets are in fact point sources,¹ the Court finds that Plaintiff cannot prevail on his CWA claim if it is premised on the Biofilter simultaneously being a point source and a water of the United States. As noted above, the CWA, in defining what it means to discharge a pollutant, sets out a to-from relationship between point sources and navigable waters. See South California All. of Publicly Owned Treatment Works v. U.S. Env't Prot. Agency, 853 F.3d 1076, 1078 (9th Cir. 2017) ("The CWA prohibits the discharge of any pollutant into navigable waters from any point source without a permit." (emphasis added)). Moreover, the statute separately defines those terms using disparate and non-overlapping language. Compare 33 U.S.C. § 1362(7) with id. § 1362(14). These aspects of the statutory text indicate that point sources and navigable waters are two different things: the former sends polluted water, and the latter receives it. See Toxics Action Ctr., Inc. v. Casella Waste Sys., Inc., No. 18-cv-393, 2021 WL 3549938, at *7-8 (D.N.H. Aug. 11, 2021) (finding that plaintiff's contention that "a water of the United States can also simultaneously be a point source . . . cannot be squared with the statutory text"). Indeed, in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), wherein the Supreme Court reviewed the circumstances under which wetlands can be considered waters of the United States, the plurality opinion recognized that the CWA's "definitions [ ] conceive of 'point sources' and 'navigable waters' as separate and distinct categories." Id. at 735-36, 126 S.Ct. 2208 (observing that the "separate classification" of ditches, channels, and conduits as point sources demonstrates "that these are, by and large, not 'waters of the United States' " (emphasis in original)).

Furthermore, and critically, the CWA's definition of the "discharge of a pollutant" expressly contemplates the "addition" of a pollutant to a navigable water. 33 U.S.C. § 1362(12). Pl...