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Ecological Rights Foundation v. Pacific Lumber Co., 230 F.3d 1141 (2000)
51 ERC 1545, 31 Envtl. L. Rep. 20,246, 00 Cal. Daily Op. Serv. 8692...
other activities less than they would if there were no such administers a so-called General Permit that regulates
runoff. Among the several members of the plaintiff discharges of pollutants into California’s waters.
organizations who use the creek for recreational activities, Industrial facilities in California subject to the Clean
two are particularly significant for this case. Water Act must either comply with the General Permit or
obtain individualized NPDES permits. See SWRCB
Christopher Hinderyckx, a member of Mateel, began Water Quality Order No. 97–03–DWQ, NPDES General
visiting the creek in 1989 when he was commuting from Permit No. CAS000001 at 2 ¶ 5 (hereinafter “General
his home in southern Humboldt County to attend classes Permit”).
at the College of the Redwoods in Arcata. Since
completing his coursework, he has continued to drive to Among the conditions imposed by the 1997 General
Arcata often, sometimes stopping along the creek. Over Permit are prohibitions on non-storm water discharges of
the years, Hinderyckx has gone swimming in Yager pollutants into the state’s waterways except those
Creek at least a dozen times. Although Hinderyckx has specifically allowed, as well as strict limits on the
enjoyed swimming in Yager Creek, he is less likely to discharge of pollutants into storm water.1 In addition, each
swim there in the future, because he now has information facility subject to the General Permit must develop and
that suggests to him that the creek may be polluted. implement an effective Storm Water Pollution Prevention
Hinderyckx also hesitates to fish in the creek because he Plan (“SWPPP”) “to reduce or prevent pollutants
is concerned about harmful pollutants in the water. And associated with industrial activity in storm water
because the creek is not as clean as it should be, discharges and authorized non-storm water discharges.”
Hinderyckx maintains, he aesthetically enjoys his 1997 General Permit at 2 ¶ 10. Substantially similar,
recreational *1145 activities there less than he otherwise albeit less detailed, requirements were in place in the
would. precursor to the 1997 General Permit that was in effect
from 1992 through 1996.
Similarly, Frederic Evenson, a Humboldt County resident
since 1990 and an ERF member, takes part in various 1 For the purpose of the NPDES program, “storm water”
recreational activities on and downstream of Yager Creek, is defined as “storm water runoff, snow melt runoff,
including swimming and snorkeling in the creek near and surface runoff and drainage.” 40 C.F.R. Ch. 1 §
Carlotta and observing wildlife. He “derive[s] immense 122.26(b)(13). “Non-storm water discharge” is “any
pleasure, strength and inspiration” from these visits. discharge to storm sewer systems that is not composed
Evenson plans to continue these visits to Yager Creek, but entirely of storm water except discharges pursuant to a
his enjoyment of Yager Creek and the downstream NPDES permit and discharges resulting from fire
waterways is impaired by discharges of pollutants from fighting activities.” 1992 General Permit Attachment 4
Carlotta and Yager Camp. ¶ 4.
2. Statutory Background 3. This Litigation
Yager Camp and the Carlotta sawmill are subject to the The plaintiff organizations brought this action pursuant to
mandates of the Clean Water Act (“CWA”). See 33 the CWA’s citizen suit provision, claiming violations of
U.S.C. § 1251 et seq. A linchpin of the CWA’s regulatory the General Permit. The Clean Water Act allows any
scheme is the National Pollution Discharge Elimination citizen to sue “any person ... who is alleged to be in
System (“NPDES”) permit program, which allows certain violation of ... an effluent standard or limitation under this
discharges of pollutants only if in compliance with chapter or ... an order issued by the [EPA] Administrator
government-issued permits, and imposes related or a State with respect to such a standard or limitation.”
monitoring and reporting requirements. See 33 U.S.C. § 33 U.S.C. § 1365. An “effluent standard or limitation” is
1342. The Clean Water Act makes illegal any discharges further defined to include “a permit or condition thereof
of pollutants that are not specifically allowed by an issued under section 1342 of this title.” 33 U.S.C. §
NPDES permit. 33 U.S.C. § 1311(a). 1365(f)(6).
Under the Clean Water Act, the states, with EPA’s At least 60 days before filing a lawsuit, a potential
approval, may issue and administer NPDES permits. See plaintiff must notify the alleged violator of her intent to
33 U.S.C. § 1342(b); see also Cal. Water Code § 13370 sue. See 33 U.S.C. § 1365(b)(1)(A); see also *1146
(expressing California’s intent to implement an NPDES National Environmental Foundation v. ABC Rail Corp.,
program at the state level). In California, the State Water 926 F.2d 1096, 1097–98 (11th Cir.1991) (compliance
Resources Control Board (“SWRCB”) issues and
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