Citizens Alliance for Property v. City of Duvall

NOT FOR PUBLICATION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.

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