28 F.4th 684
6th Cir.2022Background:
- The Army Corps designed a flood-control scheme (approved by Congress) that diverts excess stormwater from Fishpool Creek into Vulcan Quarry via a short channel and spillway; Louisville & Jefferson County Metro Sewer District (MSD) obtained a perpetual flowage easement and a state Stream Construction Permit and built the system in 2000.
- The easement expressly allowed MSD to overflow, flood, and submerge the quarry and contained no express conditions requiring water treatment or monitoring.
- South Side LLC purchased Vulcan Quarry in 2012 and later alleged that post-2014 the quarry became polluted (elevated E. coli/fecal indicators) and that MSD effectively used the quarry as a septic/settling pond.
- In 2018 South Side served pre-suit CWA notice and sued under the Clean Water Act and state tort claims, alleging violations of KPDES permits, the CWA, the easement, the Stream Construction Permit, and a Consent Decree; MSD moved to dismiss for failure to state a claim.
- The district court dismissed: it held excess-stormwater claims were time-barred and that the sewage-related CWA claims failed because South Side’s pre-suit notice did not identify sewage as a pollutant, provide dates, or identify the pollution source; state claims were dismissed without prejudice.
- The Sixth Circuit affirmed on the ground that South Side failed to satisfy the CWA’s mandatory pre-suit notice requirement and held additionally that several of South Side’s alleged legal bases could not support a citizen suit and that the diversion is a water transfer not requiring an NPDES/KPDES permit.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of CWA pre-suit notice for sewage allegations | South Side: notice described feces smell, high E. coli/coliform and alleged septic pollution in quarry | MSD: notice failed to identify sewage as pollutant, list dates, or identify pollution source or permit limits | Notice inadequate; sewage CWA claims dismissed for failure to meet mandatory notice requirement |
| Whether easement, Stream Construction Permit, or Consent Decree can serve as CWA effluent-standard basis | South Side: property-right limits, construction permit, and Consent Decree impose limitations enforceable via CWA citizen suit | MSD: easement and construction permit are not CWA effluent standards; Consent Decree enforcement is reserved to agencies/parties | Easement and Stream Construction Permit are not CWA ‘‘effluent standard[s] or limitation[s]’’; Consent Decree not enforceable by nonparty through citizen suit |
| Identification of KPDES permit effluent limitations | South Side: MSD violated MS4, wastewater treatment, and stormwater construction permits (and lacked a quarry-specific KPDES) | MSD: permits exist/are state-regulated; plaintiff’s notice fails to identify specific permit provisions or effluent limits violated | Plaintiff failed to identify any specific permit standard or limitation; notice insufficient as to alleged KPDES violations |
| Whether the diversion required an NPDES/KPDES permit (discharge vs. water transfer) | South Side: diverting Fishpool Creek into quarry without a permit is an unlawful discharge | MSD: quarry and creek are part of same water body (no ‘‘meaningfully distinct’’ transfer) and, alternatively, the Water Transfer Rule exempts the diversion | No permit required: waters are not meaningfully distinct and the channel qualifies as an EPA-exempt water transfer |
Key Cases Cited
- S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004) (holding transfers within the same water body are not CWA "discharges")
- Los Angeles Cnty. Flood Control Dist. v. Nat. Res. Def. Council, Inc., 568 U.S. 78 (2013) (reaffirming that transfers within the same water body do not add pollutants for CWA purposes)
- Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492 (2d Cir. 2017) (discussing EPA’s Water Transfer Rule and cooperative federalism in water allocation)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (describing citizen suits as a backstop and the need for notice to enable compliance)
- Hallstrom v. Tillamook Cnty., 493 U.S. 20 (1989) (requiring strict compliance with conditions precedent to suit)
- Askins v. Ohio Dep’t of Agric., 809 F.3d 868 (6th Cir. 2016) (noting primary enforcement authority rests with agencies)
- Ky. Waterways All. v. Johnson, 540 F.3d 466 (6th Cir. 2008) (recognizing Kentucky’s role in issuing KPDES permits)
- ONRC Action v. U.S. Bureau of Reclamation, 798 F.3d 933 (9th Cir. 2015) (applying Miccosukee to a transfer/pump context)
- Vogel v. City of Cincinnati, 959 F.2d 594 (6th Cir. 1992) (nonparties may not enforce a consent decree in collateral proceedings)