Auspro Enterprises, LP v. City of Austin
1:15-cv-00497
W.D. Tex.Aug 18, 2017Background
- City of Austin completed a construction project (Guerrero Park / Country Club Creek By-Pass Channel) addressing erosion and adding amenities; Plaintiff Kleinman lives across the Colorado River from the channel mouth.
- Kleinman alleges the City’s construction and failed erosion controls caused fill, sand, gravel, rocks and other material to discharge into the Colorado River, forming a visible sediment bar and harming his aesthetic interest.
- Kleinman filed a citizen-suit under the Clean Water Act seeking injunctive relief to remove the sediment and prevent further discharges; both parties moved for summary judgment.
- City defended on Article III standing, lack of ongoing violation (mootness/statute of limitations), statutory maintenance exception, and permit-shield (TPDES/MS4 and TXR150000 construction general permit).
- Key factual disputes: whether discharges from construction continued after permit expiration (City’s expert says no; Plaintiff’s experts and some evidence show discharges continued through at least Oct 2015 and possibly after), and whether erosion/discharges are caused by City activity or natural processes.
- Court denied both motions: found Kleinman has Article III standing, refused to apply permit shield or maintenance exception on summary judgment given factual disputes, and left causation/ongoing-violation questions for the jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Kleinman: aesthetic injury from visible sediment bar; redressable by remediation | City: no concrete injury, causation, or redressability | Court: Kleinman has standing (aesthetic injury sufficient; causation and redressability supported by evidence) |
| Ongoing violation (citizen-suit jurisdiction) | Kleinman: discharges continued after filing and through 2015; likely to recur | City: any violations were past or completed; expert says no further discharges; mootness/statute bar | Court: genuine dispute exists whether discharges continued; denial of summary judgment; jury to resolve ongoing-violation fact issues |
| Permit shield / permits (MS4 and construction general permit) | Kleinman: permits do not cover post-construction discharges and City may not have complied | City: discharges authorized by TPDES/MS4 and TXR150000; permit shield bars liability | Court: Permits do not clearly shield City—construction permit excluded post-construction discharges and expired; MS4 excludes construction discharges and compliance disputed; summary judgment denied |
| Liability (CWA elements: discharge, pollutant, navigable waters, point source, noncompliance) | Kleinman: materials (sand, rock, fill) are pollutants; channel is point source; discharge ongoing and not authorized | City: some materials natural erosion, not caused by City activity; construction discharges not ongoing or authorized | Court: Navigability and point-source status conceded; existence, cause, and authorization of discharges are disputed factual issues for the jury; plaintiff’s summary judgment denied |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment burden-shifting)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing—ecological/aesthetic injury)
- Sierra Club v. Morton, 405 U.S. 727 (aesthetic injury recognized)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (CWA citizen suits require ongoing/intermittent violation)
- Massachusetts v. EPA, 549 U.S. 497 (redressability principle)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (jurisdictional fact instruction; jury role)
- Sierra Club v. Shell Oil Co., 817 F.2d 1169 (CWA ongoing-violation issues)
- Piney Run Pres. Ass'n v. County Comm'rs, 268 F.3d 255 (permit shield explained)
- Sierra Club v. ICG Hazard, LLC, 781 F.3d 281 (strict liability and permit-shield context)
- E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112 (purpose of permit shield)
- United States v. SCRAP, 412 U.S. 669 (related standing jurisprudence)
- United States v. Phosphate Export Ass'n, 393 U.S. 199 (mootness standard re: recurrence)
- Miss. River Basin Alliance v. Westphal, 230 F.3d 170 (summary judgment and jurisdictional fact discussion)