Citizens Alliance for Property v. City of Duvall
Summary of the case Citizens Alliance for Property v. City of Duvall
The Citizens Alliance for Property Rights appealed against the City of Duvall, alleging that the City's storm sewer system discharged stormwater onto private property without a proper permit. The court found no genuine dispute that the City was operating under a state-issued general permit compliant with the Clean Water Act's NPDES requirements. The court affirmed the district court's summary judgment in favor of the City, as the City was found to be in compliance with its permit.
Key Issues of the case Citizens Alliance for Property v. City of Duvall
- Compliance with NPDES permit
- Alleged unpermitted discharge of pollutants
Key Facts of the case Citizens Alliance for Property v. City of Duvall
- City of Duvall operates under a state-issued general permit
- Plaintiff alleged stormwater discharge onto private property
Decision of the case Citizens Alliance for Property v. City of Duvall
Affirmed
Opinions
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 16 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CITIZENS ALLIANCE FOR PROPERTY No. 13-35959 RIGHTS, D.C. No. 2:12-cv-01093-RAJ Plaintiff - Appellant,
v. MEMORANDUM*
CITY OF DUVALL,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding
Argued and Submitted February 3, 2016 Seattle, Washington
Before: KOZINSKI, O’SCANNLAIN, and GOULD, Circuit Judges.
Plaintiff Citizens Alliance for Property Rights contends that the City of
Duvall’s (City’s) municipal separate storm sewer system (MS4) discharges
stormwater onto property owned by Steve and Ronda Mills. There is no genuine
factual dispute that the City’s stormwater discharges are regulated under a state-
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. issued general permit, which is a part of the Clean Water Act’s (CWA’s) National
Pollutant Discharge Elimination System (NPDES). See generally 33 U.S.C. §
1342. Nor is there a genuine factual dispute that the City is complying with this
permit.
Plaintiff contends that the district court erred in granting summary judgment
on a ground not raised by the City, urging that the City moved for summary
judgment only on Plaintiff’s claim that it was discharging pollutants without a
NPDES permit, and not on Plaintiff’s related claim that the City was violating an
existing NPDES permit. This is not correct. The City’s motion for summary
judgment explicitly discusses the NPDES permit under which the City operates its
MS4. Moreover, the City’s motion and accompanying declarations show that it
has developed and implemented a stormwater management program in compliance
with the general permit, see 40 C.F.R. § 122.34(a), and that this program contains
the “minimum control measures” that federal regulations require. 40 C.F.R. §
122.34(b).
Although Plaintiff has alleged a connection between the City’s MS4 and
navigable waters, that in itself does not show a violation of the CWA. The CWA
prohibits unpermitted discharges of pollutants into navigable waters. See 33
U.S.C. § 1251(a)(1). But the City is complying with the applicable permit. A
-2- discharge into navigable waters in accord with the terms of a valid permit is not a
CWA violation. Plaintiff has not supported its complaint with “significant
probative evidence” of an unpermitted discharge of pollutants into navigable
waters, or any other violation of the CWA. T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting First Nat’l Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)).
AFFIRMED.
-3-