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