good morning in may it please the court my name is justin park and i represent the citizens alliance for property rights or more commonly known as caper i would like to reserve three minutes for a bottle we're here today on capers lawsuit against the city of duvall for violations of the clean water act and specifically to discuss the decision of the district court to dismiss that lawsuit on summary judgment and i'd like to discuss with you two reasons why that decision o to be reversed and remanded the decision itself was arrived at in a little bit of an unusual way at the conclusion of the motion the court entered an order granting summary judgment there was a motion for reconsideration filed by an entirely different basis and there are two reasons i'm going to discuss as to why that new basis is is in error for the first one is procedural  violation lawsuit where there is an allegation of pollutants being dumped into waters of united states and the district court correctly reversed its prior decision on that type of lawsuit and denied the motion for summary judgment on the second type of lawsuit under n p t s a permit is for a straight violation of the permit the district court found in its order that the city of duvall did not present any evidence or present any at any time at all on that particular type of lawsuit and that therefore the alliance accordingly did not address that issue either however then the district court's final decision was based on its finding that there was not evidence presented from which a trier of fact could find that there was a violation of the n p t as permanent while those two statements fundamentally contradict one another if in fact that  it was in fact the case that that issue was not presented to the court and not briefed and therefore we should send that one back to be fully briefed and fully discussed with the district court the second reason  substantive the district court finding that there was not evidence from which it could find a violation of the n p t as permanent is simply in error the evidence of o delivery and authorised dumping of stormwater onto the mills property is is uncontested quite simply the evidence is that there is a pipe that comes into the north end of the mills property that the city's own engineer acknowledge first and foremost i would argue that the district court did not make a finding that there was were no pollutants or that there was no evidence of pollutants however the pollutants that were there are those that are found in into a page twenty one right at the bottom the sentence reads as follows the alliance goes on to describe how the mills property is being used as an intermittent channel for polluted water as described in the report also the us decision but isn't that trumped by the permit itself doesn't the permit control absolutely the permit controls and the the rate way the n p t s system works is that the evidence of have any n p t s permit and therefore the question is only whether or not the discharge of water from the system of the municipal storm sewer system or in the us for as it's referred to in the permit the only question is whether or not that water is being discharged not whether or not that that particular discharge contains any particularly pollutant and the reason for that is as as was stated by this court in the environmental defense center  case storm water in of itself is a major source of water pollution because it carries so many different pollutants again that's why you might have an argument with respect to the storm water moving across this property into the river but for the fact that there is now a permit was specifically allows it that certainly allows the city to to discharge it m s for water into the snow on the river there we don't have any debate that that is in fact the case and the question is and where were is that yes i'm lost what what's ok the particular issue here that's not covered by the permit then because of the city discharges its n s for water onto the mills property right the water then and they have no basis for doing that they don't have an easy to prove don't they have a permit to discharge t or the question is is there a violation of the clean water act and i would submit you that the violation of an n p t s permit on its own regardless of whether there's a discharge or not a dish charge is a federal claim under allowed to be discharged one place one place alone and that is the waters of the united states there is nothing in that matter fact in the permit itself under section general condition g seven i believe it is specifically states that private property is owned if you don't have a this shows into the bargain as the united states then you then you don't have a you have a question here you know you are no jew we have no jurisdiction you don't have a violation of thirteen sixty five f one if you'd have a don't have a discharge the water of the united states but you do have a violation of section f seven which is when when that when that permit holder violates that permit in any way the only mechanism of vailable for to remedy of violation of that permit pipes that are permitted to do so are but you can't simply use a piece of private property as a part of your system because you want to that's this question of state law what federal law governs is getting the water into the fact the district court in its in its final order in this case acknowledged that it could not dismiss this case based on its its idea that there was this lack of a nexus to this not on the river trying to address the issues in this case and they don't need to be jumbled together the way they are the i think the simplest to starting point is where most of the discussion was just now on what does a phase two permit allow what does it require of a city and whether there is a violation of that permit i think under any type of citizen lawsuit in fact i don't think  under any type of citizen lawsuit one of the elements would be either that the water is being discharged without a permit so that no permit exists or if it is being discharged under a permit that there is a violation of the permit that has taken place and that requires us to look more closely at what a phase two stormwater permit is what does it require what constitutes a violation if there's going to be a violation and it's important to recognize the distinction between a stormwater permit like that and what probably at least in the case law is a much more familiar type of n p t s permit violation where you have some sort of sewage treatment or industrial waste treatment that is a permit that is very driven by the analysis of what's coming out of the end of the pipe what are the various allowed levels of various types of pollutants even heat biological oxygen demand metals various things like that those can be discharged if they meet the parameters of a permit a stormwater permit is a much different animal and there are two types of those one is for the phase one permit which is for the larger cities i think over one hundred thousand that does have some measurable zz in it but it also governs a lot of details of how the engineering of a system and most of this is directed at reducing different kinds of runoff a phase two permit which is what deval has is a permit for smaller jurisdictions city deval i thinks about twenty thousand if that much face to permit is the label that's attached to it is called a program matic permit the idea of a face to permit is not the measurement of what's going out of the pipe but it's the creation of  are you doing at what you can do throughout your system to undertake a program that reduces the amount of pollutants that are getting into stormwater and there is a menu of best management practices that the e p a publishing council what is it in this particular permit that allows the water to run across the mills property that's that's that's really what we're trying to get down to well i  think that's what i'm trying to get at in that the permit isn't even an animal that addresses that kind of detail in a system it addresses an overall program that set forth in a storm water management plan it doesn't address the specific engineering of of what goes where in a in a in the in a in a permit yes i know it's not capers argument they're saying that clearly going to be a question of state law that i think it would be but if it violates the permit then i guess the clean water act going to be in the loop so could you address their argument keeper's argument that there's a permit violation yes your honor it and there's a couple parts of that the first is that the permit just generally permits discharge that's that's what it says a nd i'm quoting from it this is page seventeen of our brief and and page two zero zero four of the supplemental excerpt of record this permit authorizes the discharge of storm order to surface waters and to ground waters of the state s force owned in a owned and operated by each permit t covered under this permit in the geographic that would include the mills property that were in r and that's that's the point i was doing and that's the starting point it's just a general statement that you're allowed to operate your storm sewer system and it's allowed to discharge water what i think you're getting at your honor is that we what is there some language somewhere in that permit and it's a sixty page document that is being violated is there language that says when you make your discharge it has to be directly into the river is two answers to that no i don't think it does the second which is more to the point of the procedural issues in the case is we challenge to keep or to show that to the court we said there is no violation here and we explain how a face to permit operates and the court in its two orders on both occasions said this has been put forward to the plaintiff the nonmoving party that the moving party says there is no violation of the permit now it is on you to step forward and show us somewhere in this sixty page permit what provision you are saying was violated and there was no response from kapor on that and that is in the court two orders who is just generalities that well they can't show why this is allowed therefore it must be a violation and the court said that isn't enough they have come forward with  either proof that there was no violation or a challenge to you to make your case and you have done neither therefore that issue is decided against them and that's on  a just basically on our rules of summary judgment that is a sufficient grounds for grant the summary judgment but more to the broader point it be trays what caper is saying as a misunderstanding of the phase two permitting system as if it was some sort of engineering manual and saying well at each point along the way we have to show why this segment of our of the flow of water is specifically allowed under the system and that isn't what the phase two permit does that isn't a face to permit is is basically a requirement that the city has to create some sort of storm water management plan  and and the storm want to management plan is another seventy or eighty page document with a bunch of appendices about what construction sites and reducing inflow and infiltration things like that that is the point of the permeating system is to get every city to create these systems that address storm water runoff it is not an engineering type permit such as we see with a sewage treatment plant or something like that and that's where we're jumbling together different concepts under the clean water act and where the city want has to emphasize that that that this is a different animal here the phase two permit is is that's assuming that there is some violation of state law here and that's and that's a matter that has been litigated previously and the plaintiffs dismissed that case a case i defended for the city of  there was a action brought for trespass for this all goes back to the existence of a wetland on the property that the plaintiffs started to do clearing on years ago the city brought in foresman action there was litigation for that that was dismissed  a couple years later this case started and i submit that this case is in effect the plaintiffs trying to pound a square peg into a round hole and say well we didn't win on these state law claims of trespass or lack of an easement or something like that so let's see if we can turn this in some into some sort of clean water act case and i think they're torturing both the facts and the law in order to try to do that and and the again whatever this argument is that's now being raised i haven't heard this before in this case whatever it is is an argument under state law that was not presented to the district court was not presented in any  you very briefly your honor justice of scanlan pointed out the that the point in the permit the talks about they can discharge water to waters of the state of washington or to waters of the united states the permit does not say they can discharge water to private property and that's what they're doing here so why is it a violation of the permit they do because opposed to a violation of state law it may also be a violation of state law but caper can't bring that claim why is that a violation permitted it's a violation of the permit because the permit does control the discharge of this water in the environmental defense counsel case where versus the e p a where the ninth circuit was ruling on whether or not the rule making around this base to permit was correct is the permit say you shall not just george pluton on to the land of so so now the permit says you can it doesn't speak at all about it that's well the permit does speak about private property in general it does not speak about the mills property in specific that is correct but if you if you go with that analysis and agree with the city that all that the permit is requiring is his paperwork then there can never be had an illicit or unauthorized discharge because discharges arni are controlled by that permit but that's not the permit says the permit says you can only discharge to the state waters of the united states and these are polluted waters the whole point of clean water act is to control them if we're not going to have this permit control polluted waters then we may as well toss it out entirely has no meaning whatsoever