FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INLAND EMPIRE WATERKEEPER, a 

project of Orange County 

Coastkeeper; ORANGE COUNTY 

COASTKEEPER, a California nonprofit corporation,

Plaintiffs-Appellants/

Cross-Appellees,

v.

CORONA CLAY CO., a California 

Corporation,

Defendant-Appellee/

Cross-Appellant.

Nos. 20-55420

20-55678

D.C. No.

8:18-cv-00333-

DOC-DFM

OPINION

Appeal from the United States District Court

for the Central District of California

David O. Carter, District Judge, Presiding

Argued and Submitted March 4, 2021

Pasadena, California

Filed September 20, 2021
2 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

Before: Eugene E. Siler,* Andrew D. Hurwitz, and

Daniel P. Collins, Circuit Judges.

Opinion by Judge Hurwitz;

Dissent by Judge Collins

SUMMARY**

Environmental Law

The panel vacated the district court’s partial summary 

judgment in favor of plaintiffs and partial judgment after a 

jury trial in favor of defendants in a citizen suit under the 

Clean Water Act alleging that Corona Clay Company 

illegally discharged pollutants into the navigable waters of 

the United States, failed to monitor that discharge as required 

by its permit under the National Pollutant Discharge 

Elimination System, and violated the conditions of the 

permit by failing to report violations.

The district court granted partial summary judgment to 

the plaintiffs on Claim One, alleging illegal discharge, and 

Claim Five, alleging violation of a permit requirement to 

develop an adequate Storm Water Pollution Prevention Plan 

for managing storm water discharges. The jury returned a 

defense verdict on Claim Two, alleging discharge violations, 

Claim Six, alleging monitoring violations, and Claim Seven, 

* The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 3

alleging reporting violations. Other claims were voluntarily 

dismissed.

Plaintiffs were two affiliated nonprofit organizations 

with a mission to protect water quality and aquatic resources 

in the watersheds and coastal waters of Orange and 

Riverside Counties, including the Santa Ana River 

watershed and Temescal Creek, near Corona’s industrial 

facility. The panel held that the plaintiffs had Article III 

organizational standing to pursue their discharge and 

procedural claims because they established a concrete and 

particularized injury fairly traceable to the challenged 

conduct that likely could be redressed by a favorable 

decision. They also showed that their members would have 

individual standing, the issues were germane to their 

purpose, and neither their claims nor the requested relief 

required individual participation.

The panel held that under Gwaltney of Smithfield, Ltd. v. 

Chesapeake Bay Foundation, 484 U.S. 49 (1987), the CWA 

bars citizen suits alleging only “wholly past” violations of 

permits. In County of Maui v. Hawaii Wildlife Fund, 140 

S. Ct. 1462 (2020), the Supreme Court rejected the Ninth 

Circuit’s prior interpretation of the CWA’s discharge 

jurisdictional requirement and held that an offending 

discharge must reach the “waters of the United States,” 

either through a direct discharge or a “functional 

equivalent.” Because County of Maui was decided after the 

district court entered final judgment, the jury instructions 

corresponded to prior Ninth Circuit law. The panel 

disagreed with the district court’s interpretation of Gwaltney

and held that if the required jurisdictional discharge into 

United States waters has occurred, a CWA citizen suit can 

be premised on ongoing or reasonably expected monitoring 

or reporting violations. The panel wrote that the change in 
4 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

law in County of Maui affected not only the jury instructions, 

but also the partial summary judgment, which were premised 

on an admitted discharge, and the parties deserved the ability 

to address whether the “indirect” discharge admitted by 

Corona was the “functional equivalent” of a direct discharge 

into the waters of the United States, or whether that required 

discharge could otherwise be established. The panel 

therefore vacated the district court’s judgment and remanded 

for further proceedings consistent with the panel’s opinion 

and with the Supreme Court’s intervening decision in 

County of Maui.

Dissenting, Judge Collins wrote that the district court 

erred by holding, at summary judgment, that plaintiffs had 

constitutional standing because there was a triable issue of 

fact as to whether Corona’s alleged discharges reached or 

imminently threatened to reach Temescal Creek. Corona 

argued that the jury verdict produced an express finding that 

overlapped with, and was dispositive of, the sole theory of 

Article III standing that plaintiffs presented at summary 

judgment, that Corona had contributed, and threatened to 

contribute, to the pollution of Temescal Creek, thereby 

affecting the water quality and impairing plaintiffs’ 

members’ enjoyment of the creek. Judge Collins wrote that 

he did not think plaintiffs had established any basis for 

concluding that the verdict could not be given preclusive 

effect on the standing issue, but he would leave it to the 

district court on remand to determine whether to do so. 

Judge Collins wrote that he would not overturn the verdict 

based on jury instruction error, and he therefore would 

remand for the district court to address whether the verdict 

was dispositive of standing, and, if not, to proceed with a 

trial on the then-remaining claims.
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 5

COUNSEL

Christopher Sproul (argued), Environmental Advocates, San 

Francisco, California; Sarah Spinuzzi, Orange County 

Coastkeeper, Inland Empire Waterkeeper, Costa Mesa, 

California; Jennifer F. Novak, Law Office of Jennifer F. 

Novak, Rancho Palos Verdes, California; for PlaintiffsAppellants/Cross-Appellees.

Brian Neach (argued), Pacheco & Neach P.C., Irvine, 

California, for Defendant-Appellee/Cross-Appellant.

Robert W. Byrne, Senior Assistant Attorney General; Eric 

M. Katz, Supervising Deputy Attorney General; Carol A. Z. 

Boyd, Deputy Attorney General; Office of the Attorney 

General, Los Angeles, California; for Amicus Curiae 

California State Water Resources Control Board.

Anthony L. François, Pacific Legal Foundation, 

Sacramento, California, for Amici Curiae Chantell and 

Michael Sackett, Duarte Nursery Inc., John Duarte, and 

Roger J. LaPant Jr.
6 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

OPINION

HURWITZ, Circuit Judge:

In this Clean Water Act (“CWA”) citizen suit, the 

plaintiffs alleged that Corona Clay Company illegally 

discharged pollutants into the navigable waters of the United 

States, failed to monitor that discharge as required by its 

permit, and violated the conditions of the permit by failing 

to report violations. After the district court granted partial 

summary judgment to the plaintiffs, a jury returned a defense 

verdict on the remaining claims. Both sides appealed.

The resolution of the appeal is impacted heavily by two 

Supreme Court decisions. In the first, Gwaltney of 

Smithfield, Ltd. v. Chesapeake Bay Foundation, the Court 

held that the CWA bars citizen suits alleging only “wholly 

past” violations of permits. 484 U.S. 49, 67 (1987). The 

district court read Gwaltney as requiring proof of ongoing 

permit discharge violations and so instructed the jury. The 

second decision, County of Maui v. Hawaii Wildlife Fund,

rejected this Court’s prior interpretation of the CWA’s 

discharge jurisdictional requirement, 33 U.S.C. §§ 1311(a), 

1362(12)(A), and held that an offending discharge must 

reach the “waters of the United States,” id. § 1362(7), either 

through a direct discharge or a “functional equivalent.” 

140 S. Ct. 1462, 1468 (2020). Because County of Maui was 

decided after the final judgment in this case, the jury 

instructions corresponded to prior Ninth Circuit law.

We disagree with the district court’s interpretation of 

Gwaltney and hold that if the required jurisdictional 

discharge into United States waters has occurred, a CWA 

citizen suit can be premised on ongoing or reasonably 

expected monitoring or reporting violations. We therefore 

vacate the district court’s judgment and remand for further 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 7

proceedings consistent with this opinion and with the 

Supreme Court’s intervening decision in County of Maui.

I

Corona Clay Company processes clay products in 

Corona, California, at an industrial facility overlooking the 

Temescal Creek. Those industrial activities create “storm 

water discharge,” which Corona may release under a 

General Permit from the California State Water Resources 

Board. The Board has the authority to issue permits under 

the National Pollutant Discharge Elimination System 

(“NPDES”). See 33 U.S.C. § 1342(b). The permit requires 

Corona to maintain a Storm Water Pollution Prevention Plan 

(“SWPPP”) employing the “Best Available Technology 

Economically Achievable” (“BAT”) for toxic pollutants and 

the “Best Conventional Pollutant Control Technology” 

(“BCT”) for conventional pollutants. Corona’s permit also 

requires implementation of “Best Management Practices” 

(“BMP”) and monitoring programs that document the 

facility’s storm water discharges, analyze runoff samples, 

and report results to the State Board. If a discharge exceeds 

specified pollutant levels, the permit requires specific 

“exceedance response actions.”

The plaintiffs are two affiliated nonprofit organizations 

(collectively, “Coastkeeper”). Coastkeeper’s mission is to 

“protect water quality and aquatic resources” in the 

watersheds and coastal waters of Orange and Riverside 

Counties. That area includes the Santa Ana River watershed 

and Temescal Creek, a tributary of the River. The 

organizations represent roughly 6,000 individual members.

Coastkeeper filed this action in 2018, alleging that 

Corona violated the conditions of its General Permit and 

discharged polluted storm water into Temescal Creek (which 
8 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

then flowed into the Pacific Ocean, via the Santa Ana River). 

Counts Two, Three, and Four alleged permit violations 

directly related to discharge of pollutants, and the remaining 

counts asserted other permit violations, including failures to 

monitor discharges and report violations.

The district court granted partial summary judgment to 

Coastkeeper on Claims One and Five of the operative 

complaint. On Claim One, the district court found that 

Corona had violated the permit’s requirement to develop 

BMPs through the implementation of BAT and BCT. On 

Claim Five, the court held that Corona violated the permit’s 

requirement to develop an adequate SWPPP for managing 

storm water discharges. The district court found no dispute 

that “Defendant’s SWPPPs do not comply” with the permit’s 

performance standards, noting, for example, that Corona 

failed to “implement required BMPs regarding erosion 

controls.” The court also found that because “Defendant is 

in violation of at least some requirements of the SWPPP,” it 

necessarily violated the permit. Coastkeeper then 

voluntarily dismissed Claims Three and Four.

This left Claims Two (alleging discharge violations), Six 

(alleging monitoring violations), and Seven (alleging 

reporting violations) for trial. The district court instructed 

the jury that to prevail on those claims Coastkeeper must 

prove either a forbidden discharge after the complaint was 

filed, or a reasonable likelihood that discharge violations 

would thereafter recur. In issuing this instruction, the district 

court relied on Gwaltney, which precludes a citizen suit for 

“wholly past” violations of the CWA. See 484 U.S. at 67; 

see also Sierra Club v. Union Oil Co., 853 F.2d 667, 670 

(9th Cir. 1988) (interpreting Gwaltney to permit citizen suits 

predicated on “ongoing permit violations or the reasonable 

likelihood of continuing future violations”). The district 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 9

court held that Gwaltney required “not just any permit 

violation (such as violations of monitoring and reporting 

requirements), but specifically discharge violations” as a 

predicate to a CWA citizen suit.

The special verdict form therefore asked the jury to 

answer several questions in order. Question 1 asked whether 

Corona had discharged pollutants into the waters of the 

United States and whether the discharge occurred after the 

complaint was filed or “at any time, with a reasonable 

likelihood that such violations will recur in intermittent or 

sporadic violations?” The jury was to continue to Question 

2 only if it answered Question 1 “Yes.” Question 2 asked 

the jury to determine whether run-off of storm water 

adversely affected the beneficial uses of Temescal Creek, 

and, if so, to determine the number of violations. Only after 

answering these two questions “Yes” would the jury proceed 

to questions about whether monitoring or reporting 

violations had occurred.

The jury answered Question One “No,” and did not 

proceed to the other questions. The district court then 

entered a final judgment in favor of Corona on Claims Two, 

Six, and Seven, and in favor of Coastkeeper on Claims One 

and Five. On Claims One and Five, the district court found 

Corona had committed 664 daily violations of the SWPPP 

and 1,688 daily violations of the technology-based effluent 

limitations of the permit. It ordered Corona to implement 

structural storm water BMPs “sufficient to retain 85th 

percentile, 24-hour storm event, including a factor of safety, 

from areas subject to the [permit] no later than December 1, 

2020”; to update its SWPPP to comply with the permit; and 

to employ professional engineers to design and certify 

retention basins. The court also imposed $3,700,000 in civil 

penalties on Corona.
10 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

In denying post-trial motions from both parties, the 

district court candidly admitted that “it is certainly possible 

to read Gwaltney and Sierra Club to encompass not merely 

discharge violations, but any permit violation, as an ongoing 

violation on which a citizen suit can be based.” The court 

nevertheless found any error in its instructions “not 

prejudicial” to Coastkeeper because it had introduced no 

evidence of discharge violations at trial. Although noting 

that Corona had responded to a Rule 36 request by admitting 

that its storm water discharge flowed “indirectly” into 

Temescal Creek, the court noted “[t]his evidence . . . was not 

introduced at trial,” and “decline[d] at this juncture to admit 

this evidence post hoc and overrule the jury’s verdict.” Both 

parties timely appealed.

II

We must first consider Corona’s argument that 

Coastkeeper lacks Article III standing to pursue this citizen 

suit. Article III requires that the plaintiff have a concrete and 

particularized injury fairly traceable to the challenged 

conduct that likely can be redressed by a favorable judicial

decision. Friends of the Earth, Inc. v. Laidlaw Env’t Servs. 

(TOC), Inc., 528 U.S 167, 180–81 (2000). When suing on 

behalf of its members, an organization must show that its 

members would have individual standing, the issues are 

germane to the organization’s purpose, and neither the claim 

nor the requested relief requires individual participation. 

Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 

333, 342–43 (1977).

This case raises two types of claims: claims of discharge 

violations, which allege Corona harms Coastkeeper’s 

members by releasing storm water with pollutant levels that 

violate its permit; and claims of “procedural” violations, 

involving Corona’s failure to adhere to other permit 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 11

requirements, the obligation to monitor and report. 

“[S]tanding is not dispensed in gross,” Lewis v. Casey, 

518 U.S. 343, 358 n.6 (1996), so “a plaintiff must 

demonstrate standing for each claim he seeks to press and 

for each form of relief that is sought,” Davis v. Fed. Election 

Comm’n, 554 U.S. 724, 734 (2008) (cleaned up). We 

therefore analyze separately whether Coastkeeper 

established Article III organizational standing to pursue the 

discharge and procedural allegations.

A

The discharge claims arise in a familiar setting. In an 

environmental case, the “relevant showing . . . is not injury 

to the environment but injury to the plaintiff. To insist on 

the former rather than the latter as a part of the standing 

inquiry . . . is to raise the standing hurdle higher than the 

necessary showing for success on the merits.” Laidlaw, 

528 U.S. at 181. Coastkeeper presented sworn testimony 

from several of its members that they lived near the Creek, 

used it for recreation, and that pollution from the discharged 

storm water impacted their present and anticipated 

enjoyment of the waterway.

We have routinely found such evidence sufficient to 

establish Article III standing. See Ecological Rights Found. 

v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000) 

(finding “an aesthetic or recreational interest in a particular 

place . . . impaired by a defendant’s conduct” sufficient); see 

also id. at 1151 (“Laidlaw recognized that an increased risk 

of harm can itself be injury in fact sufficient for standing.”); 

Covington v. Jefferson Cnty., 358 F.3d 626, 639, 641 (9th 

Cir. 2004) (finding plaintiffs’ “reasonable concern of injury” 

and “fear that [contaminated] liquid will contaminate their 

property” shows an injury in fact) (cleaned up); Central
12 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

Delta Water Agency v. United States, 306 F.3d 938, 950 (9th 

Cir. 2002) (“[A] credible threat of harm is sufficient[.]”).

We again so find here. Coastkeeper established the 

requisite injury in fact and causation through its members’ 

declarations averring to frequent use of the Temescal Creek 

for recreational or academic purposes, a noticeable decrease 

in water quality conditions because of Corona’s discharges, 

and a resulting decline in their enjoyment of the waterway. 

These declarations show a present or imminent harm to the 

members’ “aesthetic or recreational interest” in Temescal 

Creek. Pac. Lumber Co., 230 F.3d at 1147. The operative 

complaint seeks an injunction to remediate the alleged harm, 

which the CWA authorizes a federal court to issue, see 

33 U.S.C. § 1365(a), (d), thereby satisfying the 

redressability requirement. Nat. Res. Def. Council v. SW 

Marine, Inc., 236 F.3d 985, 995 (9th Cir. 2000) (holding that 

redressability is established when a CWA citizen suit seeks 

injunctive relief).

B

We also reject Corona’s argument that Coastkeeper 

failed to establish Article III standing to pursue its 

procedural claims.

It is settled that violations of a permit’s “requirements 

for retaining records of discharge sampling and for filing 

reports” can be the subject of a CWA citizen suit. NW Env’t 

Advocs. v. City of Portland, 56 F.3d 979, 988, 986 (9th Cir. 

1995) (“[T]he plain language [of the CWA] authorizes 

citizens to enforce all permit conditions.”). Indeed, a 

contrary approach “would have us immunize the entire body 

of qualitative regulations from an important enforcement 

tool.” Id. at 989; see also Pac. Lumber Co., 230 F.3d at 1151 

(finding that “the Clean Water Act allows citizen suits based 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 13

on violations of any conditions of an NPDES permit, even 

those which are purely procedural”).

To be sure, Article III standing requires “a concrete 

injury,” but that injury need not be “tangible.” Spokeo, Inc. 

v. Robins, 136 S. Ct. 1540, 1549 (2016). Congress plainly 

has the power to “elevat[e] to the status of legally cognizable 

injuries concrete, de facto injuries that were previously 

inadequate in law.” Lujan v. Def. of Wildlife, 504 U.S. 555, 

578 (1992). Congress may not create standing by permitting 

a plaintiff to sue on a “bare procedural violation, divorced 

from any concrete harm.” Spokeo, 136 S. Ct. at 1549. But, 

the Supreme Court has often recognized that Congress may 

recognize a plaintiff’s interest in information or procedure, 

the deprivation of which can give rise to an Article III injury. 

See Fed. Election Comm’n v. Akins, 524 U.S. 11, 20–25 

(1998) (holding that a voter’s “inability to obtain 

information” can satisfy Article III); Pub. Citizen v. Dep’t of 

Just., 491 U.S. 440, 449 (1989) (holding that inability to 

obtain information subject to disclosure laws is sufficient).

We have also repeatedly recognized that failure to 

provide statutorily required information can give rise to 

Article III injury on the part of private plaintiffs. When the 

right to disclosure alone serves merely to “increase public 

participation in the decision-making process,” a violation 

does not rise to the level of constitutional injury. Wilderness 

Soc’y Inc. v. Rey, 622 F.3d 1251, 1259–60 (9th Cir. 2010) 

(cleaned up) (finding that violation of a regulatory provision 

requiring the Secretary of Agriculture to give notice of 

proposed actions did not establish standing). But, when a 

statute provides a right to information, the deprivation of 

which “result[s] in an informational harm,” violation of the 

statute gives rise to a cognizable “informational” injury. Id. 

at 1260; Southcentral Found. v. Alaska Native Tribal Health 
14 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

Consortium, 983 F.3d 411, 419–420 (9th Cir. 2020) (finding 

informational injury when a tribal health foundation 

challenged amendments to a tribal health consortium’s 

amendment to its code of conduct); Davidson v. KimberlyClark Corp., 889 F.3d 956, 971 (9th Cir. 2018) (recognizing 

informational injury in a suit alleging false product labeling).

The monitoring and reporting requirements in Corona’s 

permits are far from “bare” procedure. Spokeo, 136 S. Ct. 

at 1549. Rather, they serve the public’s substantive interest 

in clean water and the environment. The CWA elevated that 

interest by providing a cause of action to affected citizens. 

Lujan, 504 U.S. at 578; 33 U.S.C. § 1365(a), (g).

C

Because it is settled that CWA citizen suits may rest on 

non-discharge violations of a permit, we turn to whether the 

“irreducible constitutional minimum” of injury-in-fact has 

been shown in this case. Spokeo, 136 S. Ct. at 1547. Corona 

argues that the mere absence of a report that should have 

been filed or an inspection that should have occurred could 

not have injured Coastkeeper or its members.

We reject that argument. These permit violations 

deprive the public both of information about past discharges 

and likely future ones. If possession of that information 

would reduce the risk of injury to a plaintiff who wishes to 

know whether the water is polluted before using the Creek 

for recreation, this “increased risk of harm can itself be 

injury.” Pac. Lumber Co., 230 F.3d at 1151. The injury is 

not simply “informational”—rather, Corona’s failure to 

report creates a genuine threat of undetected past or future 

polluted discharge, harming the plaintiff’s “aesthetic or 

recreational interest.” Id. at 1147.
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 15

The declarations of Coastkeeper’s members also 

document an informational injury suffered because of 

Corona’s failure to abide by the permit’s monitoring and 

reporting requirements. Coastkeeper member Heather 

Williams, an Associate Professor of Politics at Pomona 

College who teaches classes on the politics of water and land 

use, detailed her various studies of the human-environmental 

interactions in the waterway, including a forthcoming book 

on the Santa Ana River. Her interest in accurate information 

about Corona’s discharges is obvious. Her declaration also 

established her aesthetic and recreational interests, 

expressing her concern that the industrial sediment would 

create both “visible effects of water pollution” and also “the 

less visible effects of pollution on wildlife.” Williams also 

fears that continuing violations would render the stream 

“uninhabitable to wildlife.”

The declaration of Coastkeeper Associate Director 

Megan Brosseau similarly details an academic background 

in environmental studies and “human-environmental 

interaction.” Her professional and personal mission is to 

preserve the Santa Ana watershed as a “swimmable, 

drinkable, and fishable” waterway, and she reasonably fears 

that that pollution will harm both the water itself and the 

“educational programs” conducted in Temescal Creek. 

Former Executive Director and current Coastkeeper member 

Lee Reeder is a journalist, and he averred that the “turbid, 

brown and red mud” flowing into Temescal Creek had 

significantly harmed his enjoyment of the waterway.

These declarations plainly demonstrate individual 

concern about pollution of the waterway and in Corona’s 

accurate reporting and monitoring. Each declaration 

expresses the concern that, in the future, Corona’s failure to 

follow the permit requirements will lead the water quality to 
16 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

degrade and impair the declarant’s ability to enjoy or study 

the waterway. Each declaration averred to a specific 

interest, whether academic, journalistic, or recreational, in 

the information that was harmed because of the alleged 

reporting and monitoring violations. This sufficiently 

establishes an Article III injury arising from the procedural 

allegations.

D

Our dissenting colleague asserts that the district court 

erred by holding that Coastkeeper had standing because 

there was a triable issue of fact as to whether Corona’s 

alleged discharges reached or imminently threatened to 

reach Temescal Creek. Dissenting Opinion (“Dissent”) 

at 24–36. But, this approach “confuses the jurisdictional 

inquiry . . . with the merits inquiry.” Pac. Lumber Co., 

230 F.3d at 1151; see also id. (“[A]n increased risk of harm 

can itself be injury in fact sufficient for standing.”). The 

dissent would require Coastkeeper to conclusively establish 

the discharge at the core of the merits question to 

demonstrate standing. One does not lose standing to sue just 

because his claims may fail on the merits.1

The dissent also would remand for the district court to 

determine whether the jury verdict is preclusive on the issue 

1 The dissent concedes that the Plaintiffs’ showing of Article III 

standing was “sufficient to survive a defense motion for summary 

judgment.” Dissent at 27. If there is a triable issue of fact, it follows 

that the party is entitled to have that issue submitted to the jury; it also 

follows that our dissenting colleague must believe that the jury verdict 

on the merits (which did not separately address standing) defeated 

Article III jurisdiction. As noted above, our precedent plainly rejects the 

notion that the failure to prevail on the merits defeats standing. See Pac. 

Lumber Co., 230 F.3d at 1151.
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 17

of standing. Dissent at 23, 38–40. Because we conclude 

below that the jury verdict must be vacated, we necessarily 

also conclude that it has no preclusive effect. But more 

fundamentally, even if given full effect, the jury verdict does 

not resolve the standing issue. The only question the jury 

answered was phrased as follows:

Did Plaintiffs prove, by a preponderance of 

the evidence, that Defendant Corona Clay 

Company discharged pollutants from a point 

source into streams or waters that qualify as 

jurisdictional “waters of the United States”; 

and that such discharge was either (1) on or 

after February 27, 2018, or (2) at any time, 

with a reasonable likelihood that such 

violations will recur in intermittent or 

sporadic violations?

The jury answered that question with a simple “no,” leaving 

us unable to conclude exactly which of the several issues 

posed by the question were decided.

III

Relying on the text and structure of the CWA, we 

conclude that the district court erred in interpreting Gwaltney

as requiring an ongoing discharge violation as a prerequisite 

to a CWA citizen suit asserting ongoing monitoring and 

reporting violations.

Gwaltney involved an NPDES permit regarding 

discharge of pollutants from a meatpacking plant. 484 U.S.

at 53. In the three years before the citizen suit was filed, the 

defendant “repeatedly violated the conditions of the permit 

by exceeding effluent limitations.” Id. The Court concluded 

that the CWA’s reference to a defendant found “to be in 
18 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

violation,” 33 U.S.C. § 1365(a)(1), premises a citizen suit on 

the “likelihood that a past polluter will continue to pollute in 

the future.” Id. at 57. So, an entirely past violation not likely 

to recur, while of concern to regulators, cannot support a 

citizen suit seeking injunctive relief.

The plaintiffs in Gwaltney, however, only alleged 

discharge violations. Id. at 53. Gwaltney does not address 

whether a CWA citizen suit alleging reporting or monitoring 

violations must be premised on ongoing or reasonably likely 

discharge violations. But the district court’s holding that it 

must is undercut by the text of the Act. The CWA allows a 

citizen suit “against any person . . . who is alleged to be in 

violation of [] an effluent standard or limitation under this 

chapter.” 33 U.S.C. § 1365(a)(1). Section 1365(f)(7) in turn 

defines an “effluent standard or limitation” as including “a 

permit or a condition of a permit issued under section 1342.” 

(emphasis added). The Corona permit has multiple 

“conditions,” some of which relate to storm water discharge, 

but others that relate only to monitoring and reporting.

Corona contends that reporting and monitoring 

violations cannot support a citizen suit because 33 U.S.C. 

§ 1318, which provides for reporting and monitoring 

requirements in a permit, gives the EPA Administrator 

power to undertake enforcement actions. Noting that 

reporting and monitoring requirements are not expressly 

mentioned in the definition of “effluent limitations” in 

§ 1365(f), Corona claims Congress left violations of these 

permit requirements to the Administrator alone. However, 

the only statute cross-referenced in the definition of “effluent 

limitation” in § 1365(f)—a “permit or a condition of a 

permit”—is “section 1342 of this title.” Id. That section lays 

out the NPDES permitting scheme as a whole. Thus, the 

most natural reading of the statute is that any “condition of a 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 19

permit” issued under the NPDES system is an “effluent 

limitation.”

Ninth Circuit cases applying Gwaltney do not support the 

district court’s conclusion that a CWA suit alleging 

monitoring and reporting violations can only lie if there are 

also current forbidden discharges. See Nat. Res. Def. 

Council, 236 F.3d at 998–99 (affirming a district court’s 

finding of ongoing permit violations, including the failure to 

make and keep records of daily inspections); NW Env’t 

Advocs., 56 F.3d at 986 (holding that “the plain language of 

[the CWA] authorizes citizens to enforce all permit 

conditions”); Pac. Lumber, 230 F.3d at 1151 (finding that 

“the Clean Water Act allows citizen suits based on violations 

of any conditions of an NPDES permit, even those which are 

purely procedural”).

To be sure, the CWA vests district courts with 

jurisdiction over a citizen suit only upon proof of discharge 

into the navigable waters of the United States. See 33 U.S.C. 

§ 1365(a)(1), § 1342(a). But, nothing in the statute requires 

the jurisdictional discharge be current or likely to occur. 

Thus, we hold that Gwaltney permits a citizen suit based 

ongoing or imminent procedural violations. Because the 

district court’s jury instructions required Coastkeeper to 

prove elements not required by the statute or Gwaltney, we 

vacate the jury verdict.

IV

The qualifying jurisdictional discharge into navigable 

waters presents a separate problem. At the time of trial, we 

required CWA plaintiffs to show only that pollutants in 

navigable waters were “fairly traceable from the point 

source.” Haw. Wildlife Fund v. Cnty. of Maui, 886 F.3d 737, 

749 (9th Cir. 2018). Shortly after final judgment issued in 
20 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

this case, the Supreme Court held that an NPDES permit is 

required only when discharge from a point source flows 

directly into navigable waters, or when there is “functional 

equivalent of a direct discharge.” Cnty. of Maui, 140 S. Ct. 

at 1468. An emission of polluted water is therefore a 

“discharge” for CWA purposes only “when a point source 

directly deposits pollutants into navigable waters, or when 

the discharge reaches the same result through roughly 

similar means.” Id. at 1476. “Time and distance are 

obviously important,” but there are “too many potentially 

relevant factors” to allow a bright-line test. Id.

The parties in this case reasonably tailored their cases to 

our Court’s then-extant law. In responding to a Rule 36 

request for admission, Corona admitted that its storm water 

discharge flows “indirectly into Temescal Wash.” Plaintiffs 

claimed below that this admission, together with evidence 

that waters from the Wash flow into the Santa Ana River and 

then into the Pacific Ocean, sufficed to prove jurisdictional 

discharge. This may have been true under prior law, but it 

is not obvious from the record that this flow was “direct,” as 

required by County of Maui. Nor was the jury asked to 

answer that question.

The change in law affected not only the jury instructions, 

but also the partial summary judgment, which were premised 

on the admitted discharge. The parties deserve the ability to 

address whether the “indirect” discharge admitted by Corona 

is the “functional equivalent” of a direct discharge into the 

waters of the United States, or whether that required 

discharge can otherwise be established. As we did in similar 

circumstances in County of Maui, we therefore vacate the 

judgment below and remand for further proceedings in light 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 21

of the Supreme Court’s intervening opinion. See Cnty. of 

Maui, 807 F. App’x 695, 696 (9th Cir. 2020) (order).2

V

We address one additional matter. Coastkeeper did not 

present Corona’s Rule 36 admission, that “storm water from 

the industrial area on the property . . . flows indirectly to 

Temescal wash,” to the jury. Rather, Coastkeeper asked the 

district court to deem the discovery response a binding 

judicial admission and to instruct the jury that the facts were 

admitted. The court construed this request as an attempt to 

“admit this evidence post hoc” and denied it. And, in 

denying a motion for a new trial, the court again faulted 

Coastkeeper for not itself putting the admitted fact before the 

jury.

Although the issue is not likely to recur on remand, the 

district court erred. Federal Rule of Civil Procedure 36 

permits a party to “serve on any other party a written request 

to admit . . . the truth of any matters” within the scope of 

discovery. Fed. R. Civ. P. 36(a). A matter “‘admitted under 

2 The dissent finds no basis for setting aside the verdict due to the 

intervening change in law and faults Coastkeeper for not meeting the 

new and more demanding standard of County of Maui. Dissent at 42–

43. But, when confronted with a similar situation in County of Maui, we 

remanded for further proceedings. See 807 F. App’x at 696. Fairness 

requires that we do so here; there was also no need under then-extant law 

for Coastkeeper to prove direct discharge and Corona had admitted to 

indirect discharge. That admission was sufficient to make Coastkeeper’s 

case on discharge under then-applicable law, and for the reasons above, 

we conclude that the district court erred by not instructing the jury of this 

conceded fact. Although County of Maui now requires more, the record 

does not allow us to conclude with any degree of certainty that, if 

required to show direct discharge or its functional equivalent, 

Coastkeeper would have been unable to do so.
22 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

this rule is conclusively established’ unless the court grants 

a motion to waive or amend” under Rule 36(b). Tillamook 

Country Smoker, Inc. v. Tillamook Cnty. Creamery Ass’n, 

465 F.3d 1102, 1111–12 (9th Cir. 2006) (cleaned up). 

“[T]he rule seeks to serve two important goals: truth-seeking 

in litigation and efficiency in dispensing justice.” Conlon v. 

United States, 474 F.3d 616, 622 (9th Cir. 2007). For Rule 

36 to be effective, “litigants must be able to rely on the fact 

that matters admitted will not later be subject to challenge.”

In re Carney, 258 F.3d 415, 419 (5th Cir. 2001).

Rule 36 makes plain that the admitted fact is no longer 

subject to dispute. In dealing with other facts not subject to 

“reasonable dispute,” Federal Rule of Evidence 201 allows 

the Court to take judicial notice of adjudicative facts at “any 

time.” Fed. R. Evid. 201(d). “In a civil case, the court must 

instruct the jury to accept the noticed fact as conclusive.” Id. 

201(f). Although the better practice might have been for 

Coastkeeper to ask the district judge to instruct the jury on 

the admitted fact before the close of evidence, its request that 

the jury be instructed in the final instructions sufficed, 

particularly because Corona never filed a Rule 36(b) motion 

to withdraw or amend the admission. Conlon, 474 F.3d 

at 621.3

3 The dissent argues that the district court did not err in declining to 

instruct the jury on the admission because “parties should know before 

resting that the other side plans to use a Rule 36 admission on a particular 

point.” Dissent at 44. But a matter “admitted under this rule is 

conclusively established unless the court grants a motion to waive or 

amend.” Tillamook Country Smoker, 465 F.3d at 1111–12 (cleaned up). 

Corona filed no such motion here.
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 23

VI

The district court’s judgment is vacated, and the case is 

remanded for further proceedings consistent with this 

opinion. Because we vacate the judgment, we do not address 

Corona’s objections to the district court’s costs order, the 

civil penalty, or the permanent injunction entered pursuant 

to the partial summary judgment. Each party shall bear its 

own costs.

VACATED AND REMANDED.

COLLINS, Circuit Judge, dissenting:

In my view, the district court erred by holding, at the 

summary judgment stage, that Plaintiffs Inland Empire 

Waterkeeper (“Waterkeeper”) and Orange County 

Coastkeeper (“Coastkeeper”) satisfied the requirements for 

Article III standing. Although that would ordinarily mean 

that the district court must now resolve the standing question 

on remand, Defendant Corona Clay Company (“Corona”) 

contends that the jury trial that took place on the merits of 

certain claims produced an express finding that overlaps 

with, and is dispositive of, the Article III standing issue. 

Corona therefore asks us to order dismissal of all claims for 

lack of standing. Plaintiffs, however, disagree with 

Corona’s standing analysis, and they argue that, in any event, 

the verdict must be set aside due to a number of asserted 

errors. I do not think that Plaintiffs have established any 

basis for concluding that the verdict may not be given 

preclusive effect on the standing issue, but I would leave it 

to the district court on remand to determine whether to do 

so. Because the majority’s analysis of the case is very 
24 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

different—and is contrary to well-settled authority—I 

respectfully dissent.

I

Because Article III standing is jurisdictional, we must 

address that issue at the outset, before considering any 

question concerning the merits of Plaintiffs’ various claims, 

all of which were brought under the Clean Water Act 

(“CWA”), 33 U.S.C. § 1251 et seq. See Steel Co. v. Citizens 

for a Better Env’t, 523 U.S. 83, 101–02 (1998). On this 

record, I think it is clear that the district court erred in 

granting summary judgment in favor of Plaintiffs on the 

standing issue.

A

In May 2019, Plaintiffs moved for summary judgment as 

to liability on five claims, viz., the first, second, fifth, sixth, 

and seventh causes of action in Plaintiffs’ operative First 

Amended Complaint.1 Plaintiffs’ first and second causes of 

action were based on alleged discharges of polluted 

stormwater from Corona’s facility: the first asserted that 

polluted storm water discharges from that facility violated 

the “Effluent Limitations” in the applicable “Storm Water 

Permit” (“SWP”) and the second alleged that the facility’s 

storm water discharges violated the “Discharge 

Prohibitions” of that permit. The fifth cause of action 

alleged that Corona had failed adequately to develop, 

implement, or revise a “Storm Water Pollution Prevention 

Plan” (“SWPPP”), in violation of the SWP. The sixth and 

seventh causes of action asserted that Corona had failed to 

1 Plaintiffs ultimately dismissed their third and fourth causes of 

action with prejudice.
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 25

comply with its monitoring and reporting obligations. 

Specifically, the sixth cause of action alleged that Corona 

had failed adequately to develop, implement, or revise a 

“Monitoring and Reporting Plan,” in violation of the SWP, 

and the seventh alleged that Corona had failed to comply 

with the applicable reporting requirements of the SWP.

In contending that they had Article III standing to assert 

these five claims, Plaintiffs did not rely on the theory that the 

organizations themselves had suffered an injury-in-fact that 

gave rise to standing. Cf. Havens Realty Corp. v. Coleman, 

455 U.S. 363, 378–79 (1982). Rather, Plaintiffs relied only 

on the doctrine of associational standing recognized in Hunt 

v. Washington State Apple Advertising Commission, 

432 U.S. 333, 343 (1977). Under that doctrine, an 

association may establish standing “‘solely as the 

representative of its members,’” by showing that “(a) its 

members would otherwise have standing to sue in their own 

right; (b) the interests it seeks to protect are germane to the 

organization’s purpose; and (c) neither the claim asserted 

nor the relief requested requires the participation of 

individual members in the lawsuit.” Id. at 342–43 (citation 

omitted); see also United Food & Com. Workers Union 

Local 751 v. Brown Grp., Inc., 517 U.S. 544, 554–57 (1996) 

(noting that the first Hunt requirement is “an Article III 

necessity for an association’s representative suit,” but that 

the third prong is a prudential requirement that Congress 

may abrogate). The second and third prongs are not 

contested here. Thus, the only question is whether Plaintiffs 

showed that their members would otherwise have Article III 

standing to sue in their own right.

The elements of Article III standing are that “(1) [the 

plaintiff] has suffered an ‘injury in fact’ that is (a) concrete 

and particularized and (b) actual or imminent, not 
26 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

conjectural or hypothetical; (2) the injury is fairly traceable 

to the challenged action of the defendant; and (3) it is likely, 

as opposed to merely speculative, that the injury will be 

redressed by a favorable decision.” Friends of the Earth, 

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–

81 (2000) (citation omitted). In arguing that these elements 

were satisfied by their members, Plaintiffs relied on the 

declarations of three persons, all of whom are members of 

Waterkeeper.2 Each of those declarants explained the ways 

in which Corona’s alleged discharges into Temescal Creek 

(sometimes called “Temescal Wash”) harmed their “use and 

enjoyment” of that creek by degrading, or threatening to 

degrade, the quality of the water in it. In explaining how 

these declarations established the Article III standing of 

these three members, Plaintiffs’ summary judgment motion 

likewise asserted that “Defendant’s continued discharges” 

impaired these members’ “use and enjoyment” of the creek. 

Because all of the alleged violations in the complaint 

involved laws that were “legally and technically designed to 

reduce the level of pollutants in [Corona’s] discharge,” 

Plaintiffs’ motion argued that the members’ injuries were 

fairly traceable to the alleged violations.

The district court granted summary judgment to 

Plaintiffs on the issue of standing and also granted them 

partial summary judgment as to liability on the first and fifth 

causes of action.3 The court, however, denied summary 

2 Although the declarants all described themselves as members of 

“Waterkeeper,” an additional declaration submitted by Plaintiffs 

explained that Waterkeeper is a “program” of Coastkeeper and is not a 

“separate legal entity” from Coastkeeper.

3 Corona is wrong in suggesting that the district court’s order only 

addressed the issue of standing as to the first and fifth causes of action. 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 27

judgment as to the second, sixth, and seventh causes of 

action. As to standing, the court concluded that Plaintiffs’ 

three members had established injury-in-fact that was fairly 

traceable to the challenged conduct because their 

declarations stated “that pollution from Defendant’s Facility 

has discharged pollution into the Creek, affecting the water 

quality of the habitat.” The court held that it did not matter, 

for standing purposes, whether that pollution had caused 

“actual environmental harm”; it was sufficient that the 

“pollution” affected the members’ “enjoyment from 

recreation” in the area.

B

In granting summary judgment to Plaintiffs on the issue 

of standing, the district court seemed to lose sight of the fact 

that the requirements of Article III standing are “an 

indispensable part of the plaintiff’s case,” and that “each 

element must be supported in the same way as any other 

matter on which the plaintiff bears the burden of proof, i.e., 

with the manner and degree of evidence required at the 

successive stages of the litigation.” Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 561 (1992). Thus, to succeed on its 

motion for summary judgment as to standing, Plaintiffs 

needed to show, not merely that they had made a sufficient

showing to allow the trier of fact to find standing, but that 

there was “no genuine dispute as to any material fact” as to 

their standing and that they were therefore “entitled to 

judgment as a matter of law” in their favor on that issue. 

FED. R. CIV. P. 56(a). I agree that Plaintiffs’ showing was 

sufficient to survive a defense motion for summary judgment 

That is not consistent with how the parties briefed the issue, how the 

court’s order described its ruling, or how the court later in the trial 

proceedings construed its earlier ruling.
28 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

had one been made, but it was not enough to establish that 

their members’ Article III standing had been proved as a 

matter of law.

As noted earlier, the only theory of standing presented in 

Plaintiffs’ members’ declarations was that Corona had 

contributed, and threatened to contribute, to the pollution of 

Temescal Creek, thereby affecting the water quality and 

impairing the members’ enjoyment of the creek. See supra

at 26. That is likewise the only theory on which the district 

court predicated its ruling on Article III standing, see supra

at 27, and it is the only theory of standing that Plaintiffs 

invoke in their appellate briefs. Plaintiffs’ theory that their 

declarants suffered an injury-in-fact that is fairly traceable to 

Corona’s conduct thus rested dispositively on the assertion 

that Corona’s pollution reached Temescal Creek or 

threatened to do so. Accordingly, Plaintiffs’ claim of 

standing could be resolved in their favor as a matter of law 

only if, inter alia, they presented sufficient evidence to show 

that there was no genuine issue of material fact as to whether 

Corona’s alleged polluted discharges reached the creek or 

threatened to do so.

Moreover, in addition to showing that the declarants 

suffered a fairly traceable injury-in-fact, Plaintiffs also had 

to show that those injuries would be redressed by the 

particular remedies that are available under the CWA and 

that were sought in this case. Steel Co., 523 U.S. at 106–07. 

The law is clear that the CWA only permits citizen suits 

when, at the time of filing of the suit, there is an “ongoing” 

violation or a “reasonable likelihood” of future violations, 

and that “the harm sought to be addressed by the citizen suit 

lies in the present or the future, not in the past.” Gwaltney 

of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 

57, 59 (1988). Given that focus, it follows that the 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 29

declarants’ asserted aesthetic and recreational injuries would 

be redressed by the CWA’s forward-looking remedies only 

if the declarants are “injured or face[] the threat of future 

injury due to illegal conduct ongoing at the time of suit” or 

imminently threatened in the future. Friends of the Earth, 

528 U.S. at 185 (emphasis added). Thus, for example, to the 

extent that a private plaintiff in a CWA suit can request that 

the defendant be ordered to pay civil penalties to the 

Government, it has standing to do so only because, and only 

if, the deterrent effect of those penalties would redress 

ongoing or future injuries by “abating current violations” or 

“preventing future ones.” Id. at 187; see also id. at 188 

(“private plaintiffs, unlike the Federal Government, may not 

sue to assess penalties for wholly past violations”). 

Consequently, in order for Plaintiffs to establish at summary 

judgment their sole standing theory—i.e., that Corona’s 

various CWA violations led to pollution that reached 

Temescal Creek or threatened to do so, thereby causing 

ongoing or threatened future injuries—Plaintiffs had to show 

that there is no genuine dispute that, at the time of their suit, 

Corona’s polluted discharges were reaching the creek or 

imminently threatened to reach it. See Lujan, 504 U.S. 

at 569 n.4 (standing is evaluated based on the facts “‘as they 

exist when the complaint is filed’” (citation omitted)).4

4 This result is true even assuming arguendo (as Plaintiffs contend) 

that Gwaltney only requires that a private CWA plaintiff show some

ongoing violation of the CWA and not necessarily a discharge violation. 

Cf. Maj. Opin. at 17–18. Here, Plaintiffs’ only Article III standing theory 

was that the alleged violations—including reporting violations—are 

fairly traceable to their members’ injuries because those violations led to 

actual or threatened polluted discharges and that those discharges led to 

the members’ injuries. Thus, even assuming that Gwaltney did not 

require a showing of ongoing or futures discharges, the particular theory 
30 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

Plaintiffs did not carry this burden, as the district court’s 

own summary judgment order elsewhere recognized. In 

granting summary judgment as to liability on the first cause 

of action (relating to discharges in violation of “effluent 

limitations”), the district court placed loadbearing weight on 

its (arguably erroneous) view that, to prevail on the issue of 

whether Corona had exceeded the relevant effluent 

limitations, “Plaintiffs need not show that discharges have 

reached the body of water in question.” By contrast, the 

district court concluded that Plaintiffs’ second cause of 

action required a showing that the “receiving waters” were 

discolored or that beneficial uses were adversely affected. 

Finding triable issues on these latter points, the district court 

denied summary judgment on the second cause of action. 

Thereafter, the parties tried, and the district court expressly 

submitted to the jury, the question of whether Corona’s 

discharges were reaching Temescal Creek “on or after 

February 27, 2018”—the date of filing of Plaintiffs’ suit—

or were “reasonabl[y] likel[y]” to “recur,” and the jury 

answered that question “No.” That negative answer then 

provided the basis for the district court’s entry of judgment 

against Plaintiffs on the second, sixth, and seventh causes of 

action.5

Because the record on summary judgment presented a 

triable issue of fact as to whether, at the time of the filing of 

the complaint, polluted storm water discharges from 

Corona’s facility were reaching Temescal Creek or 

of Article III standing on which Plaintiffs chose to rely required them to 

make such a showing.

5 In challenging the jury verdict on appeal, Plaintiffs have expressly 

not done so vis-à-vis the second cause of action. The adverse judgment 

on that cause of action is thus unchallenged.
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 31

imminently threatened to do so, the district court erred in 

resolving the Article III standing issue in Plaintiffs’ favor as 

a matter of law.6

C

In evaluating the district court’s upholding of Plaintiffs’ 

discharge-based theory of Article III standing, the majority 

commits the very same error that the district court did—it 

erroneously holds that Plaintiffs made a sufficient showing 

of standing, but without ever asking whether Plaintiffs had 

shown that there were no genuine issues of material fact as 

to standing. See Maj. Opin. at 10–13. The majority 

nonetheless insists that I am somehow “‘confus[ing] the 

jurisdictional inquiry . . . with the merits inquiry.’” Id. at 16

(quoting Ecological Rts. Found. v. Pacific Lumber Co., 

230 F.3d 1141, 1151 (9th Cir. 2000)). On the contrary, it is 

the majority’s position that is confused and, indeed, contrary 

to controlling Supreme Court and Ninth Circuit precedent.

6 Moreover, even apart from the triable issue concerning whether 

polluted discharges reached the creek, the declarations submitted by 

Plaintiffs in support of standing also contained potential deficiencies or 

ambiguities that could have been resolved, at a trial, against Plaintiffs. 

As Corona notes, some of the declarants’ statements or photographs 

concerning their use of the creek appear to relate to segments that are 

upstream from Corona’s facility and that thus could not plausibly have 

been affected by Corona’s alleged discharges. Another declarant 

vaguely described looking for a home “in the Temescal Creek area” and 

claimed that she was worried about Corona’s actions’ effect on home 

prices, but a trier of fact could reasonably conclude that this particular 

theory of injury was inadequate to establish standing. See Lujan, 

504 U.S. at 564 (“Such ‘some day’ intentions—without any description 

of concrete plans, or indeed even any specification of when the some day 

will be—do not support a finding of the ‘actual or imminent’ injury that 

our cases require”).
32 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

As I have explained, Lujan squarely holds that the 

elements of Article III standing are “an indispensable part of 

the plaintiff’s case” and that, as a result, “each element must 

be supported in the same way as any other matter on which 

the plaintiff bears the burden of proof, i.e., with the manner 

and degree of evidence required at the successive stages of 

the litigation.” 504 U.S. at 561 (emphasis added). That 

means that, if (as here) Plaintiffs seek summary judgment in 

their favor, they must establish that their Article III standing 

“cannot be . . . genuinely disputed.” See FED. R. CIV. P.

56(c)(1); see also Department of Commerce v. U.S. House 

of Representatives, 525 U.S. 316, 329 (1999). If they fail to 

make this showing, because there is a triable dispute as to 

standing, then Plaintiff’s standing contentions “must be 

‘supported adequately by the evidence adduced at trial.’” 

Lujan, 504 U.S. at 561 (emphasis added) (citation omitted). 

As the majority concedes, “[i]f there is a triable issue of fact” 

as to standing, “it follows that the party is entitled to have 

that issue submitted to the jury.” See Maj. Opin. at 16 n.1.

Here, the only theory of Article III standing that 

Plaintiffs presented at summary judgment—and the only one 

that they assert on appeal—rested on the premise that 

pollutants actually reached the creek or threatened to do so, 

thereby impairing Plaintiffs’ enjoyment of that creek. See 

supra at 26. Accordingly, under a straightforward 

application of Lujan, Plaintiffs’ burden at summary 

judgment was to show that there was no genuine dispute that 

pollutants from Corona did reach Temescal Creek or 

imminently threatened to reach it. They inarguably failed to 

carry that burden; indeed, the majority does not contend 

otherwise. But despite the majority’s concession that 

Corona was “entitled to have that issue submitted to the 

jury,” see Maj. Opin. at 16 n.1, the majority inexplicably 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 33

upholds the district court’s order declining to submit that 

issue to the jury.7

The majority instead posits that, because this theory of 

standing overlapped with the merits of Plaintiffs’ claims, 

Plaintiffs were somehow excused from making the showing 

that Lujan requires. See Maj. Opin. at 16–17. That is quite 

wrong. The majority relies on Pacific Lumber’s admonition 

that courts must not confuse a “jurisdictional inquiry” with a 

“merits inquiry,” 230 F.3d at 1151, but that does not mean 

(as the majority would have it) that, in such a case of overlap, 

the plaintiff is thereby excused from making the showing of 

Article III standing that Lujan requires. On the contrary, 

Pacific Lumber simply reaffirmed what the Supreme Court 

held in Friends of the Earth, namely, that the Article III 

standing inquiry is not as demanding as the merits inquiry, 

because the former can be satisfied without showing actual 

“environmental harm.” 528 U.S. at 180–81. As Pacific 

Lumber explained, a plaintiff can show actual or imminent 

harm to its “aesthetic and recreational interests” without

showing that there was “actual environmental degradation.” 

7 Even more baffling is the majority’s assertion that, because I think 

that the district court should be reversed on this point, I therefore “must 

believe that the jury verdict on the merits (which did not separately 

address standing) defeated Article III jurisdiction.” See Maj. Opin. at 16

n.1. I have said nothing of the sort. As I have explained, the district 

court’s order granting summary judgment to Plaintiffs on the standing 

issue must be reversed because it wrongly resolved a genuinely disputed 

issue that should have been submitted for resolution at trial but was not. 

This case is really that simple. In the quoted comment, the majority 

crosses the wires by referencing the entirely separate question of whether 

Corona is correct in contending that the jury’s findings on the merits 

issues that were submitted to the jury should now have the effect of 

precluding a trial on the standing issue. As I explain below, I take no 

position on that issue, but would instead leave it for the district court to 

address on remand. See infra at 38–40, 45.
34 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

230 F.3d at 1149, 1151 (emphasis added); see also Friends 

of the Earth, 528 U.S. at 181 (“The relevant showing for 

purposes of Article III standing . . . is not injury to the 

environment but injury to the plaintiff.”). However, given 

the particular theory of standing Plaintiffs asserted here, 

there could be neither harm to their aesthetic and 

recreational interests nor environmental degradation unless 

pollutants from Corona’s facility reached the creek. Nothing 

in Pacific Lumber excuses Plaintiffs from making the lesser 

showing that Article III standing requires merely because 

that inquiry, on these facts, overlaps with the more 

demanding standards that apply with respect to the merits of 

the claims.

But even worse than all of this, the majority proceeds to 

uphold a portion of the district court’s grant of summary 

judgment on the standing issue based on a theory that was 

neither presented nor substantiated below and that Plaintiffs 

have not asserted in their appellate briefs. The majority 

contends that, as to the sixth and seventh causes of action 

(which rested on Corona’s alleged monitoring and reporting 

deficiencies), Plaintiffs have standing by virtue of their 

“informational injury suffered because of Corona’s failure to 

abide by the permit’s monitoring and reporting 

requirements.” See Maj. Opin. at 15. According to the 

majority, when an interested party is deprived of a statutory 

right to obtain specified information, that “gives rise to a 

cognizable ‘informational’ injury” that itself suffices for 

Article III standing purposes. See id. at 13 (citing 

Wilderness Soc’y v. Rey, 622 F.3d 1251, 1260 (9th Cir. 

2010)). Noting that one of Plaintiffs’ declarants mentioned 

that she was writing a book about the Santa Ana River (into 

which Temescal Creek flows), the majority announces that 

her “interest in accurate information about Corona’s 

discharges is obvious,” and that this interest establishes her 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 35

standing to assert the sixth and seventh causes of action. See

Maj. Opin. at 15. For several reasons, this analysis is plainly 

incorrect.

As an initial matter, Plaintiffs’ declarations and 

summary judgment motion never mentioned or relied upon 

the pure information-deprivation theory of standing that the 

majority concocts here. See supra at 26. Rather, they rested 

on the alternative theory that, as the majority puts it, 

“Corona’s failure to report creates a genuine threat of 

undetected past or future polluted discharge, harming 

[Plaintiffs’] ‘aesthetic or recreational interest.’” See Maj. 

Opin. at 14 (emphasis added) (citation omitted). But as the 

italicized language makes clear, that theory would only 

establish a fairly traceable injury-in-fact that could be 

redressed by the forward-looking remedies in a citizen suit 

under the CWA only if there were ongoing or threatened 

future discharges. See Gwaltney, 484 U.S. at 59 (the 

particular “harm” that is traceable to the “ongoing violation” 

sought to be enjoined must “lie[] in the present or the future, 

not in the past”).8

 That latter issue concerning discharges 

was triable for the reasons explained earlier.

Moreover, there simply is no factual basis in the 

summary judgment record for concluding that Plaintiffs 

established a pure information-deprivation standing theory 

8 Because the “harm sought to be addressed” by a CWA private 

citizen suit must lie “in the present or the future,” Gwaltney, 484 U.S. 

at 59, the majority is wrong to the extent that it implicitly suggests that 

aesthetic or recreational harms associated with past pollution that has 

since abated would somehow be redressed by the mere disclosure of 

information about that past pollution. See Maj. Opin. at 14. The majority 

may be correct that a purely informational harm that is caused by 

ongoing reporting violations would be redressed by such a disclosure, 

but no such theory has been raised here.
36 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

as a matter of law. Although, as the majority notes, one of 

Plaintiffs’ declarants mentions that she is working on a book 

“that describes the politics of governing the Santa Ana River 

in Southern California,” she mentions that fact only in the 

“personal background” section of her declaration, and she 

never links it to her alleged injuries in the way that the 

majority does. When she turns, in her declaration, to 

describing the injuries that she asserts are fairly traceable to 

Corona’s challenged conduct, she never contends (as the 

majority would have it) that Corona has deprived her of 

information she needs for her book. On the contrary, her 

only theory of injury is that Corona’s actions have affected 

the waters of Temescal Creek and thereby impaired her “use 

and enjoyment” of that creek. Far from reading the factual 

record in the light most favorable to the party opposing 

summary judgment—viz., Corona—the majority instead 

aggressively reads it in Plaintiffs’ favor in order to uphold 

granting them summary judgment as a matter of law. All of 

this is contrary to well-settled law. See, e.g., JL Beverage 

Co. v. Jim Beam Brands Co., 828 F.3d 1098, 1105 (9th Cir. 

2016) (noting that, on a “motion for summary judgment, not 

only does the movant carry the burden of establishing that 

no genuine dispute of material fact exists, but the court also 

views the evidence in the light most favorable to the nonmoving party”).

II

Given that the standing issue should not have been 

resolved in Plaintiffs’ favor at summary judgment as to any 

claim, the next question is what follows from that 

conclusion. At a minimum, it means that the judgment in 

Plaintiffs’ favor as to the first and fifth causes of action—

which were partially decided in Plaintiffs’ favor at summary 

judgment—should be reversed. But that leaves the question 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 37

of whether those claims should now be tried on remand, as 

well as the issue of what effect, if any, the district court’s

error has on the jury’s verdict in Corona’s favor on the sixth 

and seventh causes of action.

Corona raised this issue in a post-trial motion that 

alternatively invoked Federal Rules of Civil Procedure 

60(b)(4) and 59(e). In that motion, Corona argued that the 

jury’s finding concerning Corona’s lack of polluted 

discharges into “waters of the United States” was binding on 

Plaintiffs and was dispositive of the Article III standing 

issue. Plaintiffs opposed the motion, arguing that, in light of 

Plaintiffs’ already-pending appeal, the district court should 

summarily deny the motion, leaving it for this court to 

resolve Corona’s arguments on Corona’s expected crossappeal. Alternatively, Plaintiffs argued that the motion 

lacked merit, because the jury’s verdict was flawed and 

would be set aside on appeal and because, in any event, the 

jury’s verdict was insufficient to establish that Plaintiffs 

lacked standing. The district court summarily denied 

Corona’s motion, concluding that Corona should present 

these arguments to this court on appeal. Corona then crossappealed the judgment and the denial of its post-trial motion.

The resulting remaining issues on appeal can be grouped 

into two categories. First, we must address whether Plaintiff 

is correct in contending that the jury’s verdict must be set 

aside. If it must be, then the judgment on all four remaining 

claims—the first, fifth, sixth, and seventh causes of action—

must be reversed, and the case remanded for a retrial that 

includes the standing issue.9

 But if that verdict survives, 

9 As noted earlier, Plaintiffs have expressly stated that they are not 

challenging the adverse judgment on the second cause of action, and so 

that claim would not be retried. See supra note 5.
38 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

then we must address whether Corona is correct in arguing 

that the verdict establishes that Plaintiffs failed to prove 

standing, thereby requiring dismissal of all claims. I will 

address these questions in reverse order.

A

As set forth earlier, the only theory of Article III standing 

that Plaintiffs put forward at summary judgment required 

them to establish as a matter of law that, at the time Plaintiffs 

filed suit, either polluted discharges were reaching Temescal 

Creek from Corona’s facility or there was an imminent threat 

that future discharges would reach the creek. See supra

at 28–29. That issue was improperly removed from the jury, 

as I have explained. Ironically, however, the district court 

for different reasons imposed a similar requirement at trial 

as a statutory matter. See infra at 40–42. The result was that 

the jury ended up making an express finding that Plaintiffs 

had failed to prove that:

[Corona] discharged pollutants from a point 

source into streams or waters that qualify as 

jurisdictional “waters of the United States”; 

and that such discharge was either (1) on or 

after February 27, 2018, or (2) at any time, 

with a reasonable likelihood that such 

violations will recur in intermittent or 

sporadic violations.

By its terms, this verdict establishes either that 

(1) Corona never discharged pollutants into Temescal 

Creek; or (2) Corona ceased all such discharges before 

February 27, 2018, with no reasonable likelihood of a 
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 39

recurrence of “such violations.”10 In asserting that this 

finding is not dispositive of the Article III standing issue, 

Plaintiffs first contend that the jury may have misconstrued 

the phrase “discharge . . . into” to exclude the sort of indirect 

runoff that was alleged here, but they point to nothing in the 

jury instructions or the arguments of the parties at trial that 

invited the jury to conclude that, even if Corona’s discharges 

reached the creek, that would not count as a “discharge . . . 

into” the creek. On the contrary, for example, Corona’s 

closing argument to the jury at trial was that polluted 

discharges did not reach the creek at all. On this record, 

there is no reasonable likelihood that the jury construed the 

instructions and verdict form as excluding indirect 

discharges. See R.H. Baker & Co. v. Smith-Blair, Inc., 

331 F.2d 506, 509 (9th Cir. 1964) (“‘A special verdict must, 

of course, be construed in the light of the surrounding 

circumstances.’” (citation omitted)).

Plaintiffs also note the verdict’s reference to 

“violations,” and they argue that, in light of that word, the 

jury could theoretically have found that Corona’s discharges 

did reach the creek, that those discharges did contain 

pollutants, but that the level of pollutants did not amount to 

a “violation.” And because environmental harm is not 

necessary for Article III standing, see Friends of the Earth,

528 U.S. at 181–82, Plaintiffs suggest that such a jury 

finding would not necessarily be dispositive of Plaintiffs’ 

sole theory of Article III standing. Concluding that the 

parties’ briefing on this point is insufficient to resolve that 

narrowly focused issue, I would remand that aspect of 

10 The district court specifically instructed the jury that “Temescal 

Wash is a qualifying water of the United States.”
40 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

Corona’s post-trial motion to the district court for it to 

address in the first instance.11

B

There should be no such remand, however, if Plaintiffs 

are correct in contending that the jury’s verdict must in any 

event be set aside. Plaintiffs challenge that verdict in this 

court on four different grounds, but in my view, all of them 

lack merit.

1

Over Plaintiffs’ objection, the district court instructed 

the jury that, to prevail on its second, sixth, and seventh 

causes of action, Plaintiffs were required to show that 

Corona’s discharges reached “waters of the United States” 

on or after the date on which the complaint was filed or that 

there was a likelihood of a “recurrence in intermittent or 

sporadic violations.” As already noted, the court’s verdict 

form reflected the same requirement. The district court did 

not impose this requirement under the theory that it was 

needed to establish Article III standing; indeed, the court had 

reiterated at a pretrial conference concerning motions in 

limine that it had resolved the standing question at summary 

judgment. Rather, the district court concluded that this 

showing was required by the citizen-suit provisions of the 

CWA, as construed in Gwaltney. The court thus imposed

the requirement as a matter of “statutory standing,” rather 

than Article III standing. See Friends of the Earth, 528 U.S. 

11 Without even considering how the jury’s verdict should be 

understood in light of the instructions and the parties’ arguments and 

evidence, the majority simply announces, without analysis, that the 

import of the verdict cannot be known. See Maj. Opin. at 17. That is 

manifestly not the proper resolution of this question.
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 41

at 175 (explaining that Gwaltney held that “citizens lack 

statutory standing under [the CWA] to sue for violations that 

have ceased by the time the complaint is filed”); see also 

Lexmark Int’l, Inc. v. Static Control Components, Inc., 

572 U.S. 118, 128, n.4 (2014) (clarifying that “statutory 

standing” does not “implicate subject-matter jurisdiction”). 

Plaintiffs contend, and the majority agrees, that the district 

court’s instruction rested on a misreading of Gwaltney and 

that, so long as “the required jurisdictional discharge into 

United States waters has occurred,” a plaintiff in a private 

CWA action need only show some ongoing or threatened 

violation of the CWA and not necessarily a dischargerelated violation. See Maj. Opin. at 6.

In my view, it is unnecessary to resolve this issue. In the 

current posture of this case, the relevant question is whether 

Plaintiffs have shown a basis for refusing to give the jury’s 

verdict preclusive effect with respect to the Article III 

standing issue that was wrongly withheld from the jury. The 

resolution of the parties’ competing positions concerning 

Gwaltney, however, would have no effect whatsoever on 

whether the jury verdict may be given such effect. As I have 

explained earlier, when Plaintiffs successfully sought and 

obtained summary judgment in their favor on the Article III 

standing issue, they did so based only on the theory that 

pollutants from Corona’s facility were reaching, or 

threatened to reach, Temescal Creek, thereby harming their 

aesthetic and recreational interests. See supra at 26, 29 n.4, 

35 n.8. Because Plaintiffs’ only Article III standing theory 

has always been a discharge-based theory, the fact that the 

jury verdict was for other (and possibly erroneous) reasons 

serendipitously focused on actual or threatened discharges 

provides no basis for declining to give that verdict preclusive 

effect vis-à-vis Plaintiffs’ discharge-based Article III 

standing theory. Put another way, the fact that the jury’s 
42 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

finding was tailored to discharges as opposed to reporting 

and monitoring violations—even if erroneous for other

purposes—provides no basis for declining to give it binding 

effect on the issue of Plaintiffs’ discharged-based theory of 

standing.

2

Plaintiffs further contend that the jury instructions were 

erroneous because they did not reflect the standards later 

announced in County of Maui vs. Hawaii Wildlife Fund, 

140 S. Ct. 1462, 1476 (2020). This subsequent change in 

law provides no basis for setting aside the jury’s verdict.

Soon after the district court entered a final judgment in 

this case, the Supreme Court in County of Maui held that the 

CWA’s permit requirements are triggered only when “there 

is a direct discharge from a point source into navigable 

waters or when there is the functional equivalent of a direct 

discharge.” 140 S. Ct. at 1476 (simplified). At the time this 

case was tried, our court had adopted a less demanding 

standard that required only that the pollutants be “fairly 

traceable from the point source to a navigable water.” 

Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737, 749 

(9th Cir. 2018). The Supreme Court held that our court’s 

“broad interpretation of the statute,” which could trigger 

permitting requirements even when a pollutant “traveled 

long and far (through groundwater) before it reached 

navigable waters,” was “too extreme.” 140 S. Ct. at 1470, 

1472, 1476.

Had the jury been instructed under the Supreme Court’s 

new standard, it arguably would have been permitted to 

conclude that the distance that Corona’s discharges had to 

travel to reach the creek—1100 feet—did not amount, on 

this record, to the “functional equivalent of a direct
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 43

discharge.” 140 S. Ct. at 1476 (emphasis added). I do not 

see how Plaintiffs were possibly prejudiced by the fact that 

the jury was not permitted to hold them to this stricter 

standard. As I have explained, given the context of the trial 

and the parties’ arguments, there is no reasonable likelihood 

that the jury would have construed the instructions and the 

verdict form to exclude the sort of indirect discharge that was 

at issue here. See supra at 38–39. In other words, the jury 

here was given the opportunity to hold Corona liable under 

the looser standards that we had previously applied, and it 

concluded that those standards had not been met. Because 

any post-verdict change in the law on this point was thus less 

favorable to Plaintiffs, it provides no basis for setting aside 

an adverse verdict that was based on more permissive 

standards.12

3

Relatedly, Plaintiffs also assert that the jury verdict must 

be set aside because the district court erroneously “failed to 

instruct the jury as to what the law defines as a discharge 

‘into’ waters” and therefore did not make clear to the jury 

that indirect discharges were covered. But, once again, there 

is no reasonable likelihood, on this record, that the jury 

12 Contrary to what the majority contends, I do not “fault[]” 

Plaintiffs “for not meeting the new and more demanding standard of 

County of Maui.” See Maj. Opin. at 21 n.2. Rather, my view is that, 

given Plaintiffs’ failure to satisfy the more lenient standard, there is no 

conceivable reason why they should be given a retrial in order to try to 

prove what the majority concedes is a “more demanding standard.” Id. 

The majority points to our remand in County of Maui, but that does not 

support the majority’s remand here. In that case the plaintiffs prevailed

under the more lenient standard, and so they obviously had to be given a 

chance to meet the newer and more demanding standard. 140 S. Ct. 

at 1469. That reasoning is inapplicable here.
44 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

would have construed the instructions and verdict form as 

excluding indirect discharges. See supra at 38–39. 

Accordingly, even if an instruction on this point should have 

been given, any error in this case would be harmless.

4

Finally, Plaintiffs argue that the district court should 

have instructed the jury that Corona was bound by its 

response, in an answer to a request for admission under 

Federal Rule of Civil Procedure 36, that “storm water from 

the industrial area on the property . . . indirectly flows to 

Temescal wash.” Plaintiffs, however, did not present the 

admission until after the close of evidence, when they asked 

the district court to treat the statement as a binding judicial 

admission. Because the purpose of Rule 36 admissions is to 

frame the issues for trial, see Asea, Inc. v. Southern Pac. 

Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981), a party 

does not have an automatic right to introduce such an 

admission for the first time after the trial record is closed. 

As a general matter, parties should know before resting that 

the other side plans to use a Rule 36 admission on a 

particular point, so that they can meet the point with trial 

evidence.13 Reopening might be warranted in some cases, 

but that is plainly a matter within the district court’s “sound 

discretion.” See Zenith Radio Corp. v. Hazeltine Research, 

13 The majority’s reliance upon Tillamook Country Smoker, Inc. v. 

Tillamook County Creamery Ass’n, 465 F.3d 1102 (9th Cir. 2006), is 

unavailing. Unlike this case, Tillamook did not involve a party’s belated

use of an answer to a request for admission. On the contrary, the answer 

was properly submitted in support of a summary judgment motion, and 

the opposing party had a full opportunity to respond with argument and 

evidence in the ordinary course. Id. at 1111–12. The same cannot be 

said here, where a party first sought to submit an answer to a request for 

admission after the trial record had already been closed.
INLAND EMPIRE WATERKEEPER V. CORONA CLAY 45

Inc., 401 U.S. 321, 331 (1971). Plaintiffs have not shown 

that that discretion was abused here.14

III

Because I do not perceive any basis at this point to 

overturn the jury verdict, I would remand for the district 

court to address whether the verdict is dispositive of the sole 

theory of Article III standing that Plaintiffs presented at 

summary judgment. If the district court answered that 

question in the affirmative, then it should enter judgment 

dismissing this action in its entirety. If it answered that 

question in the negative, then it should proceed with a trial 

on the then-remaining claims.15 Because the majority 

instead vacates the judgment on the first, fifth, sixth, and 

seventh causes of action, and remands with different 

instructions, I respectfully dissent.

14 Because Plaintiffs’ request to rely on the admission was properly 

rejected as untimely, the majority is wrong in suggesting that the 

admission somehow provides a basis for granting a do-over based on 

County of Maui. See Maj. Opin. at 21 n.2. Moreover, contrary to what 

the majority insinuates, the admission did not concede that polluted

storm water flowed from Corona’s facility to the creek.

15 That would include at least the first and fifth causes of action. 

Moreover, if on remand the district court concluded that the standing 

issue needs to be tried, then the court would be required to address 

whether its prior construction of Gwaltney was correct. If the answer to 

that question is no, then the sixth and seventh causes of action might need 

to be retried as well.