Pacific Coast Federation of Fishermen's Associations, California Sportfishing Protection Alliance, Friends of the River, San Francisco Crab Boat Owners, Institute for Fisheries Resources, and Felix Smith (collectively, "plaintiffs") bring this action under the Citizen Suit Provision of the Clean Water Act, 33 U.S.C. § 1251, et seq. ("Clean Water Act" or "CWA"). (Compl. ¶ 2, ECF 2.) Plaintiffs allege that the Grasslands Bypass Project, jointly administered by Donald Glaser, Regional Director of U.S. Bureau of Reclamation, U.S. Bureau of Reclamation ("federal defendants"), and San Luis & Delta-Mendota Water Authority (the "Authority") (together with federal defendants, "defendants"), illegally discharge polluted water into San Luis Drain and Mud Slough, two waterways that are covered by the Clean Water Act. (Compl.¶¶ 3--5.) Plaintiffs contend that this discharge violates the CWA because the Grasslands Bypass Project is a point source for which defendants have failed to obtain a National Pollutant Discharge Elimination System ("NPDES") permit. The central dispute before the court is whether the project's long established method of channeling waters through a subsurface tile system may render that system a "point source" under the CWA. The Authority moves to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim under Federal Rules of Civil Procedure ("Rule") 12(b)(1) and 12(b)(6), respectively, and federal defendants move for judgment on the pleadings under Rule 12(c).*fn1 (ECF 21.) At hearing on April 27, 2012, Stephan Volker appeared for plaintiffs; Martin McDermott, United States Department of Justice, appeared for the federal defendants; and Eric Buescher of Cotchett, Pitre and McCarthy appeared for the Authority. As discussed below, the court finds that, based on the text and history of the return flows exclusion, plaintiffs have adequately stated a claim at this stage of the litigation. Therefore, the Authority's motion to dismiss is denied. The federal defendants' motion for judgment on the pleading is denied as premature.
The Grasslands Bypass Project (the "Project") is jointly administered by the federal defendants and the Authority. (Compl. ¶ 3.) The Project uses a tile drainage system that consists of a network of perforated drain laterals underlying farmlands in California's Central Valley that catch irrigated water and direct it to the San Luis drain and from there to Mud Slough. (Id. ¶¶ 4--5, 26--28, Ex. A.) The San Luis drain and Mud Slough each are navigable waters under the CWA. (Id. ¶ 5.) In addition to catching irrigation water, the perforated tiles serve another, equally important agricultural purpose: they catch and drain groundwater that would otherwise rise above the tiles and reach the root zone of crops. (See id., Ex. 1 at 15.) The groundwater is contaminated with naturally-occurring selenium, among other pollutants. (Id. ¶ 26.) Plaintiffs allege that this purposeful collection of contaminated groundwater, unrelated to the application of surface water to the land, and its direction to Mud Slough and the San Luis drain without an NPDES permit, violates the CWA. (Id. ¶ 5.)
The Authority moves to dismiss the complaint under Rule 12(b)(1) for lack of jurisdiction and under Rule 12(b)(6) for failure to state a claim.*fn2
1. Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction and, until proven otherwise, cases lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377--78 (1994). Lack of subject matter jurisdiction may be challenged by either party or raised sua sponte by the court. FED. R. CIV. P. 12(b)(1); FED. R. CIV. P. 12(h)(3); see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583--84 (1983). A Rule 12(b)(1) jurisdictional attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming all the allegations are true and construing the complaint in the light most favorable to plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
By contrast, in a factual attack, the challenger provides evidence that an alleged fact is false, or a necessary jurisdictional fact is absent, resulting in a lack of subject matter jurisdiction. Id. In these circumstances, the allegations are not presumed to be true and "the district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).*fn3
Jurisdictional dismissal is "exceptional" and warranted only "'where the alleged claim under the constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and frivolous.'" Safe Air for Everyone, 373 F.3d at 1039 (quoting Bell v. Hood, 327 U.S. 678, 682--83 (1946)). The Ninth Circuit has held that "[j]urisdictional finding of genuinely disputed facts is inappropriate when 'the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action.'" See Sun Valley Gasoline, Inc. v. Ernst Enterprises, Inc., 711 F.2d 138, 139 (9th Cir. 1983) (quoting Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983)). "Normally, the question of jurisdiction and the merits of an action will be considered intertwined where . . . a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief." Id. (quotation omitted). Where a jurisdictional attack is mounted against a claim that implicates statutory interpretation, the court should refrain from dismissing where an interpretation is available that supports jurisdiction. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998) (". . . the district court has jurisdiction if 'the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another.'" (quoting Bell, 327 U.S. at 685 (1946)); Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold and Easement in the Cloverly Subterranean Geological Formation, 524 F.3d 1090 (9th Cir. 2008).
2. Failure to State a Claim
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," (FED. R. CIV. P. 8(a)(2)), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the--defendant--unlawfully--harmed--me accusation" or "'labels and conclusions'" or "'a formulaic recitation of the elements of a cause of action.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).
In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93--94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" (Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555)), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988--89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or as a matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003); Parks School of Business v. Symington, 51 F.3d ...