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Pacific Coast Federation of Fishermen's Associations v. Murillo

United States District Court, E.D. California

March 28, 2017

PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, et al., Plaintiffs,
v.
DAVID MURILLO, Regional Director of the United States Bureau of Reclamation, UNITED STATES BUREAU OF RECLAMATION, and SAN LUIS & DELTA-MENDOTA WATER AUTHORITY, Defendants.

          ORDER

         This matter is before the court on a motion to file a second amended complaint by the Pacific Coast Federation of Fishermen's Associations, the California Sportfishing Protection Alliance, Friends of the River, San Francisco Crab Boat Owners Association, Inc., the Institute for Fisheries Resources, and Felix Smith (collectively, “plaintiffs”). Mot., ECF No. 143. Defendants David Murillo, the United States Bureau of Reclamation (“the Bureau”), and the San Luis & Delta-Mendota Water Authority (“the Authority”) oppose the motion. Opp'n, ECF No. 147. Plaintiffs have replied. Reply, ECF No. 150. In this order, the court refers to Murillo and the Bureau collectively as “federal defendants.”

         The court held a hearing on November 4, 2016. Stephan C. Volker appeared for plaintiffs; Martin F. McDermott appeared for federal defendants; and Eric J. Buescher appeared for the Authority. For the following reasons, the court denies plaintiffs' motion.

         I. BACKGROUND

         A. Procedural History

         Plaintiffs commenced this action on November 9, 2011, alleging defendants violated the Clean Water Act, 33 U.S.C. § 1311(a) (“the Act”), by discharging pollutants into the waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit. Compl., ECF No. 1.

         On September 16, 2013, the court denied federal defendants' and plaintiffs' cross-motions for judgment on the pleadings. 2013 Order, ECF No. 70. The court converted the federal defendants' Rule 12(c) motion for judgment on the pleadings to a Rule 12(b)(6) motion and dismissed plaintiffs' complaint with leave to amend. Id. at 26. On October 7, 2013, plaintiffs filed their First Amended Complaint. First Am. Compl. (FAC), ECF No. 71. On November 15, 2013, federal defendants and the Authority each filed a motion to dismiss. ECF Nos. 76, 77. On March 28, 2014, the court found plaintiffs had pled sufficient facts to state a claim for a violation of the Act because the Grasslands Bypass Project (“the Project”) operated by defendants collects and discharges a substantial quantity of contaminated groundwater from fallow land that may be unrelated to crop production. FAC ¶ (41)(c); 2014 Order at 7, ECF No. 87. The court therefore denied the motion as to that claim, but otherwise granted defendants' motion and struck the balance of the allegations in the First Amended Complaint. 2014 Order at 8.

         On September 2, 2016, the court granted in part and denied in part cross-motions for summary judgment. 2016 Order, ECF No. 138. The court found a genuine dispute of material fact as to whether lands in the Charleston Drainage District, specifically the Vega Solar Project, had been retired from farming and were therefore no longer irrigated at the time plaintiffs filed the First Amended Complaint. Id. at 17. Accordingly, the court denied the parties' cross-motions for summary judgment as to that District. Id. However, after evaluating plaintiffs' claims regarding the remaining water districts - i.e., Widren Water District, Broadview Water District, and Mercy Springs Water District - the court granted the balance of defendants' motions for summary judgment. Id. at 20.

         On October 5, 2016, plaintiffs filed the instant motion seeking leave to file a second amended complaint. ECF No. 143. Plaintiffs explain they aim to amend the complaint to (1) include the now known date for the cessation of irrigation on the Vega Solar Project site, (2) remove the claim that the San Luis Drain is a water of the United States, and (3) provide additional information about claims regarding the San Luis Drain's contaminated discharge to Mud Slough that the court previously found to be too general. Id. at 2.

         B. Case Scheduling

         The court convened an initial scheduling conference on July 31, 2014. ECF No. 99. The court set a fact and expert discovery cut-off of July 31, 2015 and October 1, 2015, respectively, and an October 16, 2015 dispositive motion deadline. Scheduling Order, ECF No. 100. The court's scheduling order also provided that no further joinder of parties or amendments to pleadings would be permitted without leave of court and for good cause shown. Id. at 2.

         C. Undisputed Facts

         The court here relies on the parties' undisputed facts at summary judgment to provide the relevant factual background. The Project drains the Grassland Drainage Area (“GDA”), which comprises 97, 400 acres on the west side of the San Joaquin Valley. Statement of Undisputed Facts (SUF) No. 1, ECF No. 124-1. The Project is jointly administered by the Bureau and the Authority and does not have a current NPDES permit. SUF Nos. 13, 97. The Project conveys waters from the GDA through the Grassland Bypass Channel (“Bypass”) to the San Luis Drain and into the Mud Slough. SUF No. 8. Mud Slough is a wetland adjacent to national and state wildlife refuges, and is considered a water of the United States under the Act. SUF Nos. 9, 67. Mud Slough then empties into the San Joaquin River, which flows into the Sacramento and San Joaquin River Delta, and into the San Francisco Bay. Id. Within the GDA, at least 30, 800 acres have subsurface drainage systems. SUF No. 17. Water within the subsurface drainage system also flows to the Bypass, and into the San Luis Drain, where it subsequently discharges into Mud Slough. SUF No. 18. The waters discharged into Mud Slough by the Project contain pollutants including selenium, boron, and salts. SUF No. 65. Prior to reaching the Bypass, water from the GDA goes through the San Joaquin River Improvement Project (“SJRIP”), and is reused on parcels of land within the SJRIP. Suppl. SUF No. 18, ECF No. 116-1. Most of the land the SJRIP covers is within the Mercy Springs Water District. Suppl. SUF Nos. 9, 18.

         Outside the SJRIP, the GDA includes land overseen by various local agencies, including the Charleston Drainage District and the Widren Water District. Suppl. SUF No. 1. The Vega Solar Project occupies part of the land within the boundaries of the Charleston Drainage District, which is a participating member in the Project. SUF Nos. 100-01. The solar installation in the Vega Solar Project was constructed after July 1, 2014. Falaschi Decl. ¶ 9, ECF No. 115-2. The land beneath the Vega Solar Project has a subsurface drainage system. SUF No. 105. Water from this system first enters an onsite sump, into which other nearby subsurface drainage systems also discharge, and then all the collected water flows into the Project, and is finally discharged into Mud Slough through the San Luis Drain. SUF Nos. 105-08. The land within the Widren Water District is retired from agricultural use and is no longer irrigated. SUF Nos. 114-15.

         II. L ...


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