UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

INLAND EMPIRE WATERKEEPER, a Nos. 20-55420 project of Orange County 20-55678 Coastkeeper; ORANGE COUNTY COASTKEEPER, a California non- D.C. No. profit corporation, 8:18-cv-00333- Plaintiffs-Appellants/ DOC-DFM Cross-Appellees,

v. ORDER AND AMENDED CORONA CLAY CO., a California OPINION Corporation, Defendant-Appellee/ Cross-Appellant.

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 Amended November 5, 2021 2 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

Before: Eugene E. Siler, * Andrew D. Hurwitz, and Daniel P. Collins, Circuit Judges.

Order; 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,

* 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 Claim Six, alleging monitoring violations, and Claim Seven, 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 cou