OPINION AND ORDER
1. INTRODUCTION
In this сonsolidated multi-district litigation (“MDL”), plaintiffs seek relief from contamination, or threatened contamination, of groundwater from various defendants’ use of the gasoline additive methyl tertiary butyl ether (“MTBE”) and/or tertiary butyl alcohol, a product formed by the natural degradation of MTBE in water. In this case, plaintiff Orange County Water District (“OCWD” or the “District”), which is responsible for maintaining groundwater quality within its geographic region, alleges that defendants’ use and handling of MTBE has resulted in contamination and threatened future contamination of groundwater within that region. 1
In two previous decisions I dismissed a large number of OCWD’s common law claims as time-barred.
2
The claims that survived included common law claims for injuries suffered due to MTBE releases occurring after May 6, 2000 (including nuisance and trespass), statutory claims under the Orange County Water District Act
OCWD now moves for partial summary judgment under Federal Rule of Civil Procedure 56(a) on three claims against certain defendants assоciated with fourteen gasoline service station sites 4 that share four common, undisputed characteristics: first, at each of the fourteen sites, MTBE has been detected in groundwater samples drawn mainly from “Shallow” aquifers 5 at levels exceeding five parts per billion (“ppb”); 6 second, each defendant either owned or leased the station and any on-site underground storage tanks (“USTs”) associated with the station; third, each defendant supplied MTBE gasoline to the station; and fourth, each defendant has conducted remediation at the site. 7 While deferring the issue of damages for trial, OCWD argues that these undisputed facts establish defendants’ liability (1) under the OCWD Act and for (2) public nuisance and (3) trespass. For the reasons set forth below, OCWD’s motion is denied.
II. BACKGROUND
A. Defendants’ Remediation Activities
The defendants implicated in this motion are performing remediation under agency supervision pursuant to Chapter 6.7 of the California Health and Safety Code, which relates to unauthorized UST releases.
8
A “release” is broadly defined as “any spill
B. OCWD
OCWD is a statutorily-created “special water agency” charged with the responsibility to “maintain, replenish, and manage groundwater resources” within its geographic area. 14 OCWD is statutorily authorized to “prevent interference [with] ... [or] diminution ... [or] pollution or contamination” of that groundwater. 15 OCWD is also empowered “to conduct any investigations of the quality of the surface and groundwaters within the district ... to determine whether those waters are contaminated or polluted” and to “expend available funds to perform any cleanup, abatement, or remedial work required under the circumstances.” 16 Although OCWD owns many monitoring wells (ie., wells used to monitor groundwater сontamination), unlike other plaintiffs in this MDL, OCWD does not own any production wells (ie., wells used to provide water to the public). 17
Earlier in this litigation, OCWD argued, and this Court accepted, that OCWD has usufructuary rights in the groundwater that it alleges defendants have contaminated.
18
I held that on the basis of these property rights, OCWD is able to pursue its common law claims, such as public nuisance and trespass.
19
In a later Opinion, I held that, for the purposes of determining when the statute of limitations for those common law claims began to run,
20
“whether OCWD has suffered an
C. OCWD’s Regulatory Context
OCWD is one of at least two other agencies with concurrent oversight of the water supply in and around its service area. First, California’s State Water Resources Control Board comprises nine regional water boards, one of which is the Santa Ana Regional Water Quality Control Board (“Regional Board”). The Regional Board’s territory еncompasses several water districts, including OCWD. Second, the Orange County Health Care Agency (“OCHCA”) is a regional public health agency tasked with, inter alia, investigation and remediation of certain MTBE spill sites. Both the Regional Board and OCHCA have been active in remediation of MTBE at spill sites within OCWD’s service area, including those owned by defendants, but neither agency has undertaken MTBE remediation efforts beyond those spill sites.
In a previous decision, I held that OCWD’s usufructuary rights in its groundwater were not subservient to the rights of other agencies such as the Regional Board, and denied defendants’ motion to stay or remand based on a theory of primary jurisdiction. 23 That motion was based in part upon defendants’ contention that various other regulatory agencies were already active in the on-site remediation at various sites within OCWD’s territory, and that California’s regulatory scheme had already provided or would provide the relief sought by OCWD in this suit. 24 In denying that motion, I noted that “[wjhile other agencies such as the Regional Board or OCHCA may engage in spill-site remediation, they do not attempt remediation or containment of MTBE plumes that may have escaped the spill site before remediation efforts began (or may persist despite such efforts) ....” 25
D. OCWD’s Efforts
“OCWD became acquainted with MTBE contamination in 1995 .... Soon after, OCWD began systematic testing for MTBE contamination within its district.”
26
III. LEGAL STANDARD
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
29
“An issue of fact is genuine if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ A fact is material if it ‘might affeсt the outcome of the suit under the governing law.’”
30
“[T]he burden of demonstrating that no material fact exists lies with the moving party ....”
31
“When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence ... on an essential element of the nonmovant’s claim.”
32
In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, the non-moving party must do more than show that there is “ ‘some metaphysical doubt as to the material facts,’ ”
33
and “ ‘may not rely on conclusory allegations or unsubstantiated speculation.’ ”
34
However, “ ‘all that is required [from the non-moving party] is that sufficient evi
“In ruling on a motion for summary judgment, a court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party.” 36 However, “[i]t is a settled rule that ‘[credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.’ ” 37 Summary judgment is therefore “appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” 38
Summary judgment is not an all-or-nothing proposition; Rule 56(a) permits a party to move for summary judgment as to a claim, defense, or part of a claim or defense.
IV. DISCUSSION
I address in turn each of the claims for which OCWD moves for partial summary judgment.
A. Orange County Water District Act 1. The Act
Section 40-8 of the OCWD Act (“Investigations of quality of surface and ground-waters; cleanup; liability”) provides:
(a) The district may conduct any investigations of the quality of the surface and groundwaters within the district which the district determines to be necessary and appropriate to determine whether those waters are contaminated or polluted.
(b) The district may expend available funds to perform any cleanup, abatement, or remedial work required under the circumstances which, in the determination of the board of directors, is required by the magnitude of the endeavor or the urgency of prompt action needed to prevent, abate, or contain any threatened or existing contamination of, or pollution to, the surface or groundwaters of the district. This action may be taken in default of, or in addition to, remedial work by the person causing the contamination or pollution, or other persons. The district may perform the work itself, by contract, or by or in cooperation with any other governmental agency.
(c) If, pursuant to subdivision (b), the contamination or pollution is cleaned up or contained, the effects thereof abated, or in the case of threatened contamination or pollution, other necessary remedial action is taken, the person causing or threatening to cause that contamination or pollution shall be liable to the district to the extent of the reasonable costs actually incurred in cleaning up or containing the contamination or pollution, abating the effects of the contamination or pollution, or taking other remedial action. The amount of those costs, together with court costs and reasonable attorneys’ fees, shall be recoverable in a civil action by, and paid to, the district. In any such action, the necessity for the cleanup, containment, abatement, or remedial work, and the reasonableness of the costs incurred therewith, shall be presumed, and the defendant shall have the burden оf proving that the work was not necessary, and the costs not reasonable. 39
Thus, the OCWD Act sets forth a three-step right to recovery for OCWD. First, the District conducts “investigations of the quality of the surface and groundwaters within the district ... to determine whether those waters are contaminated or polluted.” 40 Second, the District may “expend funds to perform any cleanup, abatement, or remedial work required under the circumstances,” discovered in the initial investigation. 41 Third, the District can seek reimbursement for the “reasonable costs actually incurred” in cleaning up or containing actual contamination, or for “other necessary remedial action” in the case of threatened contamination 42
2. Application
OCWD moves for recovery of costs incurred under the OCWD Act. 43 According to OCWD, as a result of the contamination at the service stations at issue on this motion, “the District Board determined, pursuant to the Act, that it is necessary to remediate MTBE contamination, and the threat of contamination, in order to prevent, abate, and contain threatened and existing contamination of groundwater supplies in the District’s service area.” 44 Allegedly acting pursuant to that determination, the District (1) “has conducted testing for MTBE at drinking water production wells associated with stations where MTBE was released” 45 and (2) “retained consultants to investigate and charаcterize the groundwater impacts from MTBE ... released at gasoline stations within the District’s service area” 46 at a cost of at least six-hundred thousand dollars. 47 Those consultants “have now completed their initial assessment and vulnerability analysis for each of the stations for which the District now seeks partial summary judgment.” 48
The District is seeking to recover for the costs associated with these two endeavors. Recognizing that these costs are not “costs actually incurred” in remediating actual contamination, OCWD argues that they are reimbursable as “other necessary remedial action” taken in response to threatened contamination. 49
The plain language of the Act clearly prohibits recovery for these costs. The Act expressly distinguishes between “investigations ... to determine whether
B. Public Nuisance
Under OCWD’s theory of public nuisance, defendants have “substantially interfered with and obstructed the District’s ability to provide a water supply free from unacceptable health risk, taste, odor, color, pollution and contamination, and to protect groundwaters within its territory from such harm.” 57 According to OCWD, “the MTBE causing the District appreciable harm is in the groundwater immediately beneath each of the defendants’ stations, a fact which defendants admit makes the MTBE ‘almost alwаys traceable to’ the overlying gasoline stations.” 58 OCWD prays for “compensatory and exemplary damages, ... including, but not limited to, equitable relief in the form of an order requiring Defendants to abate the nuisance properly as to the District’ 59
The groundwater “immediately beneath” each of defendants’ stations is the nuisance of which OCWD complains—the interference that has “appreciably harmed” it. However, OCWD is not seeking to investigate, clean up, or abate contamination at any one of the fourteen sites at issue in this motion. Instead, OCWD’s alleged “damages” will relate to the costs associated with investigating and abating
off-site
groundwater contamination allegedly caused by the migration of contaminated water from the fourteen sites at issue in this motion.
60
Although OCWD (apparently) does not believe proof of off-site groundwater or drinking water contamination is necessary for summary adjudication as to liability on its public nuisance claim, it nevertheless
asserts—once
in its brief— that it has “determined that MTBE has escaped on-site remediation and moved off-site at each of the stations”
61
As evidence, it cites the Declaration of David Bolin, a certified hydrogeologist for OCWD, submitted in opposition to a previous motion for summary judgment filed by defendants in this case.
62
However, it does not direct the Court to any specific statement within that declaration proving that MTBE has “escaped on-site remediation and moved off-site at each of the stations.” Moreover, a close examination of the declaration reveals that any “deter
[t]he drinking water wells that the District associates with the fourteen stations at issue in its Motion have never had a detection of MTBE above the California 5 ppb secondary MCL or even the 3 ppb California “detection level for reporting” (meaning the District has never reported а detection to the State for any of these wells). [OCWD’s] case rests on “mierodetections,” which are of questionable validity and are legally “non-detects.” 64
Defendants, in turn, cite no evidence for this assertion. This is all to say that, if there is evidence that on-site contamination is affecting groundwater off-site (or drinking water), OCWD has not submitted that evidence in support of this motion, apparently believing such evidence to be irrelevant to establishing a public nuisance in light of the other facts it has established as to each site.
1. Applicable Law
Nuisance is defined as
[a]nything which is injurious to health ... or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway____ 65
A public nuisance is “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” 66
Of course, not every interference with collective social interests constitutes a public nuisance. To qualify, and thus be enjoinable [or abatable], the interference must be both substantial and unreasonable. It is substantial if it causes significant harm and unreasonable if its social utility is outweighed by the gravity of the harm inflicted. 67
“The remedies against a public nuisance are: [¶] 1. Indictment or information; [¶] 2. A civil action; or, [¶] 3. Abatement.” 68
To prove its public nuisance claim, OCWD must show,
first,
that defendants, by acting or failing to act,
created
a condi
Defendants argue that OCWD has not shown (1) that defendants’ alleged interference was “substantial and unreasonable” or (2) that defendants’ conduct was a substantial factor in causing OCWD’s alleged harm.
2. Application
a. Substantial and Unreasonable Interference
OCWD contends that my previous finding that
“OCWD
was appreciably harmed as a mаtter of law when MTBE was detected at or above five ppb at any monitoring well within OCWD’s territory”
73
proves “substantial and reasonable” interference as a matter of law.
74
But that finding was made in the context of determining when the statute of limitations for OCWD’s common law claims began to run. The reason I found
OCWD
to be “appreci
While subtle, this distinction is important — and OCWD gives it scant attention in its briefing. 77 Although a required element of OCWD’s public nuisance claim (given its prayer for damages) is a showing of special injury to its property interest— its usufructuary interest in groundwater independent of the State or the People’s general interest in groundwater 78 — the primary “injury” that it must show to sustain its public nuisance claim is an in injury to the public — an “offense[ ] against, or interference with, the exercise of rights common to the public. 79 The fact that OCWD the regulatory body is harmed by MTBE detection at five ppb in shallow aquifers beneath gasoline service stations — to the extent such detection causes it to incur costs while acting in furtherance of its charge to protect all groundwater within its territory — does not prove, as a matter of law, that such contamination has substantially and unreasonably interfered with the public’s use of the water.
I am not holding that OCWD
cannot
prove that MTBE contamination or threatened contamination constitutes a public nuisance. Rather, the evidence submitted in support of the instant motion for partial summary judgment does not support it. OCWD submits no evidence, for example, that the contamination at any of the fourteen sites has prevented the public from using the District’s water, or has offended the senses of a substantial number of individuals in the district. The contamination at five ppb found at each monitoring well identified by OCWD was drawn from shallow aquifers — water which is
already unusable,
as OCWD has conceded.
80
Indeed, on a previous motion in this case, the District submitted a declaration claiming that “virtually all drinking water wells within the District’s area draw from several hundred feet below ground surface, and certainly none draw water from shallow depths close to service stations.”
81
Thus, although a secondary MCL
in drinking water
“may adversely affect the odor or appearance of the water and may cause a substantial number of persons served by
OCWD directs the court to State of California v. Campbell, where the Ninth Circuit upheld a district court decision granting summary judgment to the State on its public nuisance claim against a manufacturer that had dumped trichloroethylene on its property (the “20th Street Property”), resulting in the contamination of groundwater at the site itself and also in municipal and private wells located down-gradient from the site. 84 According to OCWD, Campbell stands for the proposition that “ ‘[polluted water is a public nuisance.’ ” 85 Leaving aside for the moment whether this is an accurate statement of California law, 86 it is certainly taken out of context, for OCWD has offered no undisputed evidence that the water in its district is “polluted” as the Campbell court used that word:
Where ... it is claimed that a substance underlying [defendants’] land creates a public nuisance, it is not enough that some water on or in'the land may come into contact with the substance. Rather, it must be shown that thе substance has, or at least is likely to have, invaded the water supplies of the public or of a considerable number of persons with one or more of the effects set forth in Civil Code section 3479. 87
Such a showing was made in Campbell. After the California Department of Toxic Substance's Control detected the presence of trichloroethylene and other hazardous chemicals in the soil beneath the 20th Street Property,
[subsequent testing indicated that high concentrations of trichloroethylene and other hazardous substances were present not only in the soil but also in the groundwater at the 20th Street Property. The Department tested the groundwater in municipal and private wells that are located downgradient from the 20th Street Property and determined that trichloroethylene had contaminated that groundwater as well. One of the polluted wells was located at Stanley Park, a housing subdivision located about a mile downgradient from the 20th Street Property. 88
Nor has the District presented evidence of “the potential for future contamination of public water supplies,” 90 a separate basis for its public nuisance claim. As in Beck,
[t]he evidence is that any contamination of the soil on [defendants’] property ... is at relatively shallow depths The shallow groundwater in the area is of poor quality and water users draw their supplies from much deeper sources .... 91
Moreover, all fourteen sites are undergoing remediation and, as I discussed earlier, OCWD has presented no undisputed evidence that the contamination has migrated off-site, or the extent of that contamination. But when a plaintiff pursues a public nuisance claim based on a fear of future harm, “the burden must be on the plaintiff to establish some measure of such things as the magnitude and likelihood of the danger and it cannot be enough to merely suggest a danger and assert that it has not been ruled out.” 92 In other words, proving that “significant amounts of [ ] MTBE moved off-site long before groundwater remediation efforts began, and that on site remediation efforts have been too little, too late” is not an issue for “the damages phase of this case” 93 ; it is a crucial component of perhaps the most important element of OCWD’s public nuisance claim, and a component that OCWD did not support with sufficient evidence on this motion. Thus, although I cannot conclude as a matter of law that “it is unlikely that the contamination under [defendants’] property will invade public water supplies,” 94 I certainly cannot grant partial summary judgment to OCWD on the substantial and unreasonable harm element of its public nuisance claim.
b. “Substantial Factor”
While OCWD has not offered undisputed evidence that the interference of which it complains is substantial and unreasonable, it has proven, as a matter of law, that the acts of defendants associated with the fourteen sites implicated in this motion were a “substantial factor” in causing the MTBE contamination detected beneath those sites, thereby satisfying the causation requirement for a public nuisance claim. 95
A substantial factor in causing harm isa factor that a reasonable person would consider to have contributed to - the harm. It must be more than a remote or trivial factor [, but it] does not have to be the only cause of the harm. Conduct is not a substantial factоr in causing harm if the same harm would have occurred without that conduct. 96
i. UST-Operated Sites
In addition to sharing three of the four primary characteristics based on which OCWD argues all defendants may be held liable — namely, (1) ownership of (or a lease on) a now-contaminated site and any on-site USTs, (2) responsibility for supplying MTBE gasoline to the station, and (3) responsibility for remediation at the site — the defendants associated with five of the fourteen sites implicated in this motion also (4) operated the USTs located on-site. 97 Under these facts, the possibility that these defendants were not a substantial factor in causing the MTBE contamination detected on-site amounts to “metaphysical doubt.” 98 First, because each defendant is engaged in remediation at each site pursuant to Chapter 6.7 of the California Health and Safety Code, and because an unauthorized release from a UST precipitates any cleanup under Chapter 6.7, it follows that an unauthorized release from a UST caused at least some of the contamination at each site. (Thus, defendants’ contention that a “customer drive-off [or] tank over-fill” could be responsible for the contamination 99 is untenable.) Second, the defendants associated with these stations supplied the gasoline stored in the leaking USTs, owned the leaking USTs, and operated the leaking USTs. Thus, there can be no explanation for the UST leaks that “created or assisted in the creation of the [alleged] nuisance” other than some act by these defendants. 100 Accordingly, partial summary judgment as to these five sites on the issue of causation is granted.
ii. Non UST-Operated Sites
However, defendants proffer evidence that nine of the fourteen stations at issue on this motion were
operated
by independent dealers during periods when MTBE was detected beneath them — some of whom testified at their depositions that they were responsible for all daily duties at the sites, including gauging USTs for inventory loss, verifying inventory, recording product deliveries, inspecting island and tank fill areas, and monitoring for alarms.
101
Defendants argue that this evidence “raises a factual issue as to whether the non-Defendant operators or someone other than the station owner may have
“[A plaintiff] is not required to eliminate entirely all possibility that the defendant’s conduct was not a cause Conduct can be considered a substantial factor in bringing about harm if it has created a force or series of forces which are in continuous and active operation up to the time of the harm ....” 105
Defendants emphasize this Court’s previous decision holding that ownership and supply alone are not enough to establish liability for nuisancе. 106 But that decision, as well as the decision on which it was based, addressed (1) manufacturer liability for nuisance in the absence of property ownership 107 as well as (2) landowner liability for nuisance in the absence of any affirmative conduct on the part of the landowner. 108 They are inapposite. These defendants not only manufactured MTBE and owned the land that was contaminated, but supplied MTBE to the stations and owned the USTs where it was stored — the USTs that leaked, necessitating remedial action on their part. As the City of Modesto court explained, “liability for nuisance does not hinge on whether the defendant owns, possesses or controls the property, nor on whether he is in a position to abate the nuisance; the critical question is whether the defendant created or assisted in the creation of the nuisance. ” 109 Because “reasonable minds could not dispute” this question as to the defendants associated with these nine sites, 110 even if the independent dealers’ actions may also have been a substantial factor in causing the nuisance, partial summary judgment on the issue of cаusation is granted.
OCWD moves for partial summary judgment not only as to liability for public nuisance, but also that the nuisance is “continuing” such that the claim is timely (i.e., the statute of limitations has not run). In a public nuisance cause of action in which the plaintiff prays for damages incidental to the abatement of the public nuisance (as OCWD does here), the nuisance must be characterized as either “continuing” or “permanent.” If the nuisance is permanent, a plaintiff must bring one action for all past, present, and future damages within the three-year statute of limitations after the permanent nuisance is created. 111 On the other hand, if the nuisance is continuing, then “ ‘[e]very repetition of [the] continuing nuisance is a separate wrong,’ subject to a new and separate limitation period, ‘for which the person injured may bring successive actions for damages until the nuisance is abated, even though an action based on the original wrong may be barred.’ ” 112 “The classic example of a continuing nuisance is an ongoing or repeated disturbance, such as ... one ... caused by noise, vibration or foul odor.” 113 To show a continuing violation, the plaintiff must demonstrate that the damage is “reasonably abatable,” which means that the condition can be removed “without unreasonable hardship and expense.” 114 However, the fact that an abatement “may take considerable time and may never be wholly successful” does not dictate a finding that it is not abatable. 115 “Whether contamination ... is a permanent or continuing injury is ordinarily a question of fact turning on the nature and extent of the contamination.” 116
In support of its motion, OCWD presents three arguments intended to prove the reasonable abatability of the contamination at the sites at issue. 117 First, OCWD argues that the contamination must be abatable because the defendants are engaging in remediation. 118 Second, the defendants’ Master Answers state that gasoline leaks are generally remediable. 119 Third, the District is authorized by law to determine whether MTBE can and should be abated, and has made the decision that it should be. 120
Abatability is not proven by defendants’ on-site remediation efforts, however, because the District’s theory of damages is based on
offsite contamination,
and the tactics used to remediate MTBE vary depending on where it is being conducted.
OCWD’s argument that abatability is established by defendants’ Answers is also unconvincing, for two reasons. First, not every defendant’s Answer contains the assertion that gasoline spills can generally be remediated. 121 Second, the California Supreme Court has rejected the contention that “mere technological feasibility proves abatability.” 122 Thus, there must be a determination that remediation is not merely possible, but reasonable in light of all the circumstances of the contamination at issue. The broad, general language contained in the Answers is insufficient evidence of the abatability of the contamination at each site at issue.
Finally, OCWD’s reliance on its own determination that MTBE can and should be abated is unavailing. The District points to minutes from a 2005 Board of Directors mеeting adopting a resolution that funds should be expended “to perform investigation, cleanup, abatement, and remedial work to address MTBE.” 123 This general resolution does not constitute a determination that MTBE can be reasonably abated at the fourteen sites at issue in this motion.
In the absence of any expert reports demonstrating that the groundwater contamination can be remedied at a reasonable cost by reasonable means at these sites, and because I must construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor, I must conclude that there is a genuine issue of material fact whether the contamination is reasonably abatable at all fourteen sites at issue in this motion, and that the nuisance is therefore continuing.
C. Trespass
1. Applicable Law
“A trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it .... ” 124
2. Application
The theory of OCWD’s trespass claim is that defendants’ alleged contamination of on-site groundwater constitutes an invasion of OCWD’s usufructuary interests— interests I held, on a previous motion for summary judgment, to be possessory property rights.
125
In opposing that motion, OCWD had argued that through its replenishment of the groundwater basin, it acquired a corollary “ ‘legal [usufructuary] right to withdraw an equivalent amount of water from the basin.’”
126
I agreed with
OCWD’s enabling Act specifically charges it with the power to [a]ppropriate and acquire water and water rights within or outside of the district. In accordance with this mandate, OCWD has acquired a usufructuary right through its replenishment activities under California law. 127
On this basis, I rejected defendants’ argument — in support of its motion to dismiss OCWD’s trespass claim — that OCWD has no “ ‘possessory interest in real property’ with which the alleged MTBE contamination has interfered.” 128
Defendants now argue that OCWD’s motion for partial summary judgment as to liability for trespass must fail because “[t]he District’s usufructuary right to water — to the extent it has one — is subordinate to other water users, and as such, the District does not have exclusive control of the water and cannot assert a trespass claim.” 129 In California, “the right of property in water is usufructuary, and consists not so much of the fluid itself as the advantage of its use.” 130
Courts typically classify water rights in an underground basin as overlying, appropriative, or prescriptive. An overlying right, analogous to that of the riparian owner in a surface stream, is the owner’s right to take water from the ground underneath for use on his land within the basin or watershed; it is based on the ownership of the land and is appurtenant thereto. 131
Conversely, an appropriative right is based not on the ownership of land above the groundwater, but on the taking of groundwater. 132 “One with overlying rights has rights superior to that of other persons who lack legal priority [such as appropriative rights-holders], but is nonetheless restricted to a reasonable beneficial use.” 133 The right of an appropriator (like OCWD) is thus subordinate to an overlying right-holder. This is true for groundwater rights even if the overlying right-holder is not exercising its right. 134
To the extent the District has
any
usufructuary rights,
135
those rights are ap
V. CONCLUSION
For the aforementioned reasons, OCWD’s motion for partial summary judgment of liability on all three of the claims at issue in this motion is denied. The Clerk of the Court is directed to close this motion (Docket No. 186). A conference is scheduled for August 2, 2011 at 4:30 p.m.
SO ORDERED.
Notes
. For a thorough recitation of plaintiffs’ factual allegations,
see, e.g., In re MTBE Prods. Liab. Litig.,
.
See In re MTBE Prods. Liab. Litig.,
. OCWD's Fourth Amended Complaint (“CompL”) ¶ 106.
. The sites implicated in this motion are: Arco # 1887; Arco # 1905; Chevron # 9-5401; Chevron #9-1921; Mobil # 18-JMY; Mobil # 18-G6B; Shell #6502; Texaco #121681; Unocal #5792; Unocal # 5226; Unocal #5376; Unocal #5123; G & M Oil #4; G & M Oil # 24.
. The groundwater basin in Orange County is comprised of three major aquifers — Shallow, Principal, and Deep — all hydraulically connected. The Shallow aquifer reaches a depth of approximately 200 feet, the underlying Principal aquifer reaches depths of approximately 1,500 feet, and the Deep aquifer underlies the Principal aquifer and reaches depths of 2,000 feet or greater. Most of the drinking water production wells in OCWD’s territory draw groundwater from the Principal aquifer at depths of 300 to 1,000 feet. However, the Principal aquifer is replenished by recharge water that travels from the ground surface, through the Shallow aquifer, and into the Principal aquifer. See 5/28/08 Supplemental Declaration of Roy Herndon, OCWD Chief Hydrologist, Ex. 11 to Declaration of Jeremiah Anderson, counsel to Chevron, in Support of Defendants' Opposition to Plaintiff's Motion for Partial summary Judgment ("Anderson Decl.”), ¶¶ 5-7.
. The California Department of Health Services ("CDHS”) has established a "secondary” Maximum Contaminant Level ("MCL”) for MTBE of five ppb. While the "primary” MCL is based on the level of contamination "that, in the judgment of the department, may have an adverse effect on the health of persons,” Cal Health & Safety Code § 116275(c)(1), the "secondary” MCL is based on the level of contamination "that may adversely affect the odor or appearance of the water and may cause a substantial number of persons served by the public water system to discontinue its use, or that may otherwise adversely affect the public welfare.”
Id.
§ 116275(d).
See Western States Petroleum Ass’n v. Department of Health Servs.,
. Defendants essentially cоncede these facts, disputing only their legal significance.
. See Cal. Health & Safety Code §§ 25280-25299.
. Id. § 25281.
. Id. § 25295.5.
. See infra Part II.C.
. See Cal. Health & Safety Code § 25295.
. See id. § 25296.10.
. Cal. Water Code App. § 40-2(6). OCWD also has the power to " [appropriate and acquire water and water rights within or outside of the district.” Id. § 40-2(6)(d).
. Id. § 40-2(9).
. Id. §§ 40-8(a) & (b).
.
See In re MTBE Prods. Liab. Litig.,
No. 1:00-1898, MDL 1358, M21-88,
.
See In re MTBE Prods. Liab. Litig.,
.
See In re MTBE Prods. Liab. Litig.,
. In California, a plaintiff will be deemed to have suffered injury sufficient to give rise to a cause of action when it has suffered some "appreciable and actual harm.”
San Francisco Unified Sch. Dist. v. W.R. Grace & Co.,
.
In re MTBE Prods. Liab. Litig.,
.
In re MTBE Prods. Liab. Litig.,
.
See In re MTBE Prods. Liab. Litig.,
. See id. at *1.
. Id. at *6 (emphasis added).
.
In re MTBE Prods. Liab. Litig.,
.
See
Plaintiffs Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("PL 56.1") ¶ 3.
See also
3/23/05 Minutes of OCWD Board of Directors Meeting (“3/23/05 OCWD BOD Minutes”), Ex. 1 to Declaration of Michael Axline, counsel to OCWD, in Support of Plaintiffs Motion for Partial Summary Judgment ("Axline Decl.”), at 9 (adopting a resolution “[Qinding and reaffirming that available funds have been and may continue to be expended to perform investigation, cleanup, abatement, and remedial work to address MTBE contamination, and the threat of MTBE contamination, in the District’s service area .... ”). Defendants object to the minutes on the ground that Axline "does not have the required personal knowledge to authenticate these purported meeting minutes.” Defendants' Objections to Plaintiff’s Summary Judgment Evidence at 1. The objection fails, however, because public records ”do[] not require any foundational testimony” from a qualified witness to be admissible, and Defendants offer no evidence indicating a lack of trustworthiness.
United States v. Doyle,
. See Pl. 56.1 ¶ 3.
. Fed.RCiv.P. 56(c).
.
Roe v. City of Waterbary,
.
Miner v. Clinton County,
.
Jaramillo v. Weyerhaeuser Co.,
.
Higazy v. Templeton,
.
Jeffreys v. City of New York, 426
F.3d 549, 554 (2d Cir.2005) (quoting
Fujitsu Ltd. v. Fed. Express Corp.,
.
Kessler v. Westchester County Dep't of Soc. Servs.,
.
McClellan v. Smith,
.
Id.
(quoting
Fischl v. Armitage,
.
Pyke
v.
Cuomo,
. Cal. Water Code App. § 40-8(c) (emphases added).
. Id. § 40-8(a) (emphasis added).
. Id. § 40-8 (b).
. Id. § 40-8(c).
. OCWD also seeks a judicial declaration that it is entitled to "future costs” incurred under the OCWD Act. See Plaintiff's Reply to Defendants’ Opposition to Plaintiff’s Motion for Partial Summary Judgment ("PL Reply”) at 12. However, the plain language of the OCWD Act — which permits recovery only for "reasonable costs actually incurred” Cal. Water Code App. § 40-8(c) — clearly prohibits this.
. Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment ("Pl. Mem.”) at 1 (citing Pl. 56.1 ¶ 2; 3/23/05 OCWD BOD Minutes).
. Id. at 7 (citing Pl. 56.1 ¶ 3).
. Id. at 6 (citing Pl. 56.1 ¶ 3).
. See OCWD’s Responses and Objections to Certain Defendants' Third, Fourth, Fifth, Sixth, Seventh, and Eighth Sets of Requests for Production of Documents (Re: Cost Recovery at Focus Plumes 1, 2, 3, 8, and 9), Ex. 2 to Axline Decl., ¶ 2.
. Pl. Mem. at 7 (citing Pl. 56.1 ¶ 9).
. See id. at 9.
. Cal. Water Code App. § 40-8(a).
. See Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Partial Summary Judgment (“Opp. Mem.”) at 8 (citing the Webster’s Dictionary definition of “remedial” ("intended as a remedy”) and “remediation” ("the act of remedying”)). Defendants also argue that the contamination at issue was "actual,” not “threatened” contamination, for which only the cost of cleanup or containment is reimbursable. See id. at 9. The District has made clear, however, that its investigatory efforts are directed toward containment of threatened contamination of groundwater off-site in the event MTBE escapes on-site remediation.
. See Declaration of Lester Feldman, Scientist with AMEC Geomatrix, in Support of Defendants' Opposition to OCWD’s Motion for Partial Summary Judgment (“Feldman Decl.”), ¶¶ 11-12 (“The Consultant Summaries are based on the Consultant's review of publicly available data and documents, and not on any independent investigation or analysis by the Consultants. The Consultant Summaries are historical summaries of the remediation history of each of the Sites. They do not recommend or otherwise suggest what additional remedial actions, if any, need to be taken at any individual one of the Sites .... I have not seen any evidence that the agencies overseeing the remediation at the Sites have requested summaries similar to the Consultant Summaries, which suggests that the Consultant Summaries were unnecessary and duplicative.”).
. See, e.g., Arco 1887 Site Summary Prepared by Hargis + Associates, Ex. 4 to Axline Decl., at 2 ("Production well HB-3A is the nearest major active supply well located approximately 2,000 feet southwest of the Site.... MTBE and TBA has not historically been detected in this well.”); id. at 2-3 (“Production wells HB-5 and FURU-HB1 are potentially vulnerable production wells located approximately 3,600 feet southeast and 2,800 feet southwest of the Site, respectively ____ MTBE and TBA have not historically been detected in these wells.”); id. at 13 (explaining that although "[gjroundwater contamination is not fully hydraulically contained,” the "historical lateral extent of the MTBE and TBA plumes has 'not been fully delineated" and the “vertical extent of MTBE and TBA in groundwater beneath the Site has not been fully investigated”) (emphasis added); id. ("Contaminant migration from the Semi-perched Aquifer to deeper production aquifers could occur with natural downward flow of groundwater.”) (emphasis added).
. The scope of work of at least one of the reports states that it is being used "in support of [this] litigation related to [MTBE] contamination," not to aid remediation of the sites. 5/27/05 Komex Scope of Work Proposal, Ex. 46 to Anderson Deck, at 1.
.
See Connecticut Nat'l Bank v. Germain,
.
See Bridgeway Corp. v. Citibank,
. Compl. ¶ 97.
. Pl. Mem. at 8 (quoting Pl. 56.1 ¶ 4 (quoting Arco/BP's Third Amended Master Answer and Affirmative Defenses (filed July 2, 2007))).
. Compl. ¶ 100 (emphasis added).
.
See
Pl. Mem. at 18 ("In the damages phase of this case, the District will establish that significant amounts of [] MTBE moved off-site long before groundwater remediation efforts began, and that on site remediation efforts have been too little, too late.”); Pl. Reply at 11 ("OCWD ... is primarily concerned with off-site contamination and remediation[].”);
In re MTBE Prods. Liab. Litig.,
. Pl. Mem. at 7.
. See id. (citing 6/3/09 Supplemental Declaration of David Bolin in Support of OCWD's Response to Defendants’ Further Supplemental Motion for Summary Judgment on the Statute of Limitations [Docket No. 105]).
. For example, when discussing “Bellwether Plume No. 1” in relation to Arco # 1887, Bolin declared that "the first real hydrogeologic evidence that MTBE has escaped [the site] was the MTBE detection in the production well associated with Plume 1.” Id. ¶ 14. In his deposition, however, Bolin explained that "I think what I was saying there was that we knew that there had been a release at the site.” 8/13/10 Deposition of David Bolin ("8/13/10 Bolin Dep.”), Ex. 1 to Anderson Deck, at 14:2-7.
. Opp. Mem. at 1. Accord id. at 9 ("The District has brought forth no evidence concerning whether any alleged offsite contamination is above the MCL or that the contamination on these sites is a threat to any drinking water offsite.”).
. Cal. Civ.Code § 3479 (emphasis added).
. Id. § 3480.
.
County of Santa Clara v. Atlantic Richfield Co.,
. Cal. Civ.Code § 3491.
. See County of Santa Clara,
. See id.
.
See In re MTBE Prods. Liab. Litig.,
I previously held that the scope of OCWD's statutory authority is broad enough to include actions for abatement of a public nuisance generally,
see In re MTBE Prods. Liab. Litig.,
No. 1:00-1898, MDL 1358, M21-88,
. See Judicial Council of California, Civil Jury Instructions ("CACI”) § 2020 (2011) (emphases added to highlight elements contested by defendants).
.
In re MTBE Prods. Liab. Litig.,
. See Pl. Mem. at 16.
.
In re MTBE Prods. Liab. Litig.,
.
In re MTBE Prods. Liab. Litig.,
. See, e.g., Pl. Reply at 9 (“Defendants ... argue that OCWD must show 'substantial and unreasonable’ interferеnce with its property interests. [But] [defendants made no such argument when asking the Court to apply the statute of limitations ____”) (citations omitted); PL Mem. at 19 (arguing that "[s]ummary judgment is ... appropriate” because “the Court has determined that such contamination appreciably harms the District’s property interests as a matter of law”).
.
See In re MTBE Prods. Liab. Litig.,
.
People ex rel. Gallo v. Acuna,
. See 2/28/07 Declaration of Roy Herndon, OCWD Chief Hydrologist ("2/28/07 Herndon Decl.”), Ex. 12 to Anderson Decl., ¶3 ("[S]hallow groundwater at service station sites ... is simply not useable drinking water.”).
. Id.
. Cal. Health & Safety Code § 116275(d).
. Nor has OCWD introduced any evidence that it uses the shallow groundwater surrounding these stations for any other activity, including its recharge activities.
.
See
. Pl. Reply at 9 (quoting
.
See Beck Dev. Co., Inc. v. Southern Pac. Transp. Co.,
. Id. at 552. As the Beck court explained,
"Groundwater is water within the earth's zone of saturation. Vadose water — water above the zone of saturation and in the zone of aeration, and not capable of withdrawal by wells — is generally excluded from this definition.” (Tarlock, Law of Water Rights and Resources, Environmental Law Series (1995 rev.) § 4.02, p. 4-2, fn. omitted.) Despite this explanation, “groundwater” is not a word with fixed meaning under California law, and it is sometimes used simply to refer to any water which is under rather than upon the ground .... The resolution of a particular claim of nuisance cannot be resolved definitionally and instead must be determined by reference to the peculiar facts and circumstances shown by the evidence.
Id. (emphasis added).
.
Campbell,
.
Beck,
. Id. at 553 (emphasis added).
. Id.
. Id. at 554.
There was no evidence [submitted by plaintiff] to establish any likelihood that the substance under [defendants'] property will invade the deeper groundwaters from which public water supplies are drawn. There was no evidence of the effect on the public, if any, that the substance would have if it migrated off [defendants’] property and came into contact with the shallow groundwaters in the area. And there was no evidence to establish any measure of the likelihood that such an event might occur. Instead, the evidence was simply to the effect that the testing that was done was inadequate to support firm factual conclusions, and that the possibility of migration and contact with the shallow groundwater off [defendants’] property could not be ruled out.
Id. (emphasis added).
. Pl. Mem. at 18.
.
Beck,
. To be clear, whether that contamination amounts to a public nuisance has not yet been established.
. CACI § 430 (2011).
See also Rutherford v. Owens-Illinois, Inc.
. Defendants argue that using remediation activities as evidence of responsibility for contamination runs the risk of creating perverse incentives against remediation, because choosing to remediate would be considered evidence of liability. The argument in nonsensical, however, because UST owners and operators are legally required to conduct remediation of unauthorized UST releases— they have no choice.
.
Matsushita Elec. Indus.,
. See Opp. Mem. at 5.
.
City of Modesto Redevelopment Agency
v.
Superior Court,
. See Defendants' Statement of Material Facts that Give Rise to Genuine Disputes Pursuant to Local Rule 56.1(B) ¶¶ 16-18 (Arco # 1887), 40-41 (Arco # 1905), 63-64 (Chevron # 9-5401), 75 (Chevron # 1921), 99 (Mobil # 18-G6B), 109-110 (Unocal # 5792), 130 (Unocal #5376), 142 (Unocal #5123), 176 (Texaco # 121681).
. Opp. Mem. at 5.
.
City of Modesto,
.
Espinosa v. Little Co. of Mary Hosp.,
.
Id.
(quoting
Osborn v. Irwin Mem’l Blood Bank,
. See Opp. Mem. at 4 (citing
In re MTBE Prods. Liab. Litig.,
.
See In re MTBE Prods. Liab. Litig.,
.
See City of Modesto,
.
City of Modesto,
.
See Lombardo,
.
See Capogeannis v. Superior Ct.,
.
Capogeannis,
.
Baker v. Burbank-Glendale-Pasadena Airport Auth.,
.
Mangini II,
.
Capogeannis,
.
Mangini I,
. See Pl. Mem. at 22-23.
. See id. at 22.
. See, e.g., BP Master Answer at 22 (“[G]asoline leaks, whether containing MTBE or not, are almost always traceable to a specific source, limited to the immediate geographic area of the source, and remediable.”).
. See Pl. Mem. at 22-23.
. At a minimum, G & M Oil’s Answer does not contain the assertion at issue.
.
Mangini II,
. 3/23/05 OCWD BOD Minutes.
.
Wilson v. Interlake Steel Co.,
.
See In re MTBE Prods. Liab. Litig.,
. Id. at 461 (quoting OCWD’s Memorandum of Law). See id. (“Usufructuary rights generally arise from some physical act with respect to the water by the appropriate to manifest the possessory right. The appropriative right, however, may also be based on conservation of groundwater through substitution of, or replenishment from, an alternative supply.”) (quotation marks and footnotes omitted) (emphasis added).
. Id. at 461 (quotation marks and citations omitted).
. Id. at 462 (quoting defendants’ Memorandum of Law).
. Opp. Mem. at 19 (footnote omitted) (emphasis added).
.
National Audubon Soc'y v. Superior Court,
.
City of Barstow v. Mojave Water Agency,
.
See National Audubon Soc'y,
.
City of Barstow,
.
See Wright v. Goleta Water Dist.,
OCWD relies on Newhall Land & Farming Co. v. Superior Court for the proposition that "[discharging hazardous waste into soil and groundwater constitutes a trespass.” Pl. Mem. at 24 (citing19 Cal.App.4th 334 ,23 Cal.Rptr.2d 377 , 383-84 (1993)). But in New-hall, the court sustained a trespass claim by plaintiffs — owners of property contaminated by USTs — against the prior owners of the property. See23 Cal.Rptr.2d at 383-84 . Plaintiffs were not even asserting exclusive possessory rights in groundwater beneath that land, let alone (subordinate) appropriative rights.
. While I previously stated that “OCWD has acquired a usufructuary right through its
.
See City of Barstow,
. Moreover, even if OCWD had proven its trespass claim as a matter of law, there would remain for trial a genuine issue of material fact as to whether that trespass was continuing or permanent — for the same reasons there is a genuine issue of material fact whether the MTBE contamination constitutes a continuous or permanent nuisance (if a nuisance at all).
See Mangini II,
.
See Bridgeway Corp.,