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Black Warrior River-Keeper, Inc. v. Drummond Company, Inc.

United States District Court, N.D. Alabama, Southern Division

May 7, 2019




         Black Warrior Riverkeeper (“BWR”), an environmental advocacy organization, brings this citizen enforcement action against Drummond Company, a coal mining company, under the Clean Water Act (“CWA”), 33 U.S.C. § 1365, and the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a)(1)(B), for alleged discharges of pollutants from an abandoned coal mining site into the Locust Fork of the Black Warrior River and an alleged tributary of the Locust Fork. BWR asserts three CWA claims for discharges of pollutants without a permit in violation of 33 U.S.C. § 1311(a) (Counts I-III) and a RCRA endangerment claim (Count IV). Doc. 24 at 17-26.

         Before the court are Drummond's motion for summary judgment on all claims, doc. 48, and BWR's motion for partial summary judgment as to liability on Counts I and, alternatively, IV, doc. 51. After careful consideration of the law and the parties' briefs, docs. 49, 52, 59, 60, 68, 69, the court finds that BWR's motion is due to be granted in part, and Drummond's motion is due to be denied.

         Due to the length of this opinion, a brief roadmap may be helpful to the reader. Sections I and II, which do not address the specific contentions in this case, outline the standard of review and the statutory and regulatory framework, respectively. Section III outlines the factual and procedural background of this dispute. In section IV, the court turns to the parties' respective contentions, beginning in subsection A with BWR's contention that it has established that Drummond has engaged in unpermitted discharges in violation of § 402 of the CWA. After finding for BWR in part-specifically, as to the acid mine drainage (“AMD”) discharges into Locust Fork and the point sources, the court addresses in subsections B - E Drummond's various arguments in support of its motion for summary judgment, beginning with the statute of limitations defense. Finally, subsections F and G address the parties' respective contentions in support of their motions on the RCRA claim. Ultimately, the court concludes in section V that only BWR's motion related to AMD discharges into Locust Fork is due to be granted.


         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. “Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (alteration in original). At summary judgment, the court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255. Any factual disputes will be resolved in the non-moving party's favor when sufficient competent evidence supports the non-moving party's version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (internal quotations omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The simple fact that both sides have filed a motion for summary judgment does not alter the ordinary standard of review. See Chambers & Co. v. Equitable Life Assurance Soc., 224 F.2d 338, 345 (5th Cir. 1955) (explaining that cross-motions for summary judgment “[do] not warrant the granting of either motion if the record reflects a genuine issue of fact”). Rather, the court will consider each motion separately “‘as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.'” 3D Med. Imaging Sys., LLC v. Visage Imaging, Inc., 228 F.Supp.3d 1331, 1336 (N.D.Ga. 2017) (quoting Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004)). “[C]ross motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.” Bricklayers, Masons & Plasterers Int'l Union v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975).


         A. The Clean Water Act

         Congress enacted the CWA to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). Towards that end, the CWA prohibits the discharge of any pollutant, including dredged or fill material, by any person into navigable waters unless authorized by an appropriate permit. Altamaha Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 309 Fed.Appx. 355, 356 (11th Cir. 2009) (citing 33 U.S.C. § 1311(a)). Pursuant to section 402 of the CWA (“CWA § 402”), parties that discharge pollutants to navigable waters must obtain a permit under the National Pollutant Discharge Elimination System (NPDES) program, which imposes effluent limitations and other water quality standards, from either the Environmental Protection Agency (EPA) or an EPA-approved state permit program. 33 U.S.C. § 1342. In Alabama, the Alabama Department of Environmental Management (ADEM) is authorized to administer and enforce the NPDES permit program. See ADEM Admin. Code 335-6-6-.01 et seq.[1] Under section 404 of the CWA (“CWA § 404”), dischargers of “dredged or fill material into navigable waters at specified disposal sites” must also obtain a permit, which may be issued by the U.S. Army Corps of Engineers (“the Corps”). 33 U.S.C. § 1344; see Black Warrior Riverkeeper, Inc., v. U.S. Army Corps of Engineers, 781 F.3d 1271, 1275 (11th Cir. 2015).

         The CWA authorizes citizen enforcement actions against any person “alleged to be in violation” of an effluent limitation or standard under the CWA or an administrative order by the EPA or a state. 33 U.S.C. § 1365(a)(1). The Act requires plaintiffs to give notice of the alleged violations at least sixty days prior to commencing a citizen suit. Id. § 1365(b)(1). Courts in such actions may award civil penalties and grant equitable relief. Id. §§ 1365(a), 1319(d).

         B. The Resource Conservation and Recovery Act

         The primary purpose of the RCRA “is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, ‘so as to minimize the present and future threat to human health and the environment.'” Mehrig v. KFC Western, Inc., 516 U.S. 479, 483 (1996). RCRA authorizes citizen enforcement actions against “any person . . . who has contributed or is contributing to the past or present handling, storage, treatment, transportation or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). Courts in RCRA citizen “endangerment” actions may grant equitable relief. Id. § 6972(a). Moreover, section 6972(a)(1)(B) “applies retroactively to past violations, so long as those violations are a present threat to health or the environment.” Parker v. Scrap Metal Processors, Inc., 386 F.3d 993, 1014 (11th Cir. 2004). Finally, RCRA citizen plaintiffs must provide notice of the alleged violations at least ninety days prior to commencing their endangerment action. 42 U.S.C. § 6972(b)(2)(A).

         C. The Surface Mining Control and Reclamation Act

         Congress enacted the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. §§ 1201 et seq., in part, to “strike a balance between protection of the environment and agricultural productivity and the Nation's need for coal as an essential source of energy.” 30 U.S.C. § 1202(f). The Act authorizes each state to submit a proposed regulatory program that is “in accordance with the Act's requirements.” Id. § 1253(a). Upon approval from the U.S. Secretary of the Interior, the state assumes “exclusive jurisdiction over the regulation of surface coal mining and reclamation operations” subject to certain statutory exceptions. Id.; see Citizens for Responsible Resource Development v. Watt, 579 F.Supp. 431, 434 (M.D. Ala. 1983). The Alabama Surface Mining Commission (ASMC) was granted primacy under the SMCRA in May 1982. See Watt, 579 F.Supp. at 434; doc. 50-4 at 21.

         SMCRA specifies that persons engaging in surface coal mining operations must obtain a permit from an approved state agency “no later than eight months from the date on which a State program is approved[.]” 30 U.S.C. § 1256(a). The Act further requires a permit applicant to file with the regulatory authority “an accurate map or plan” that reflects the “permit area, ” which is defined as “the area of land indicated on the approved map [in the application] . . . which area shall be covered by the operator's bond as required by section 1259 . . . .” Id. § 1291(17). The applicant must file this performance bond with the appropriate regulatory agency, and the bond covers “land within the permit area upon which the operator will initiate and conduct surface coal mining and reclamation operations within the initial term of the permit.” Id. § 1259(a). The regulatory authority may fully release the bond “[w]hen the operator has completed successfully all surface coal mining and reclamation activities” and “all reclamation requirements of this chapter are fully met.” Id. § 1269(c)(3). Finally, compliance with the SMCRA does not shield a party from potential liability under the CWA. See id. at § 1292(a)(3) (“Nothing in this chapter shall be construed as superseding, amending, modifying or repealing . . . [t]he Federal Water Pollution Control Act [], as amended, the State laws enacted pursuant thereto, or other Federal laws relating to preservation of water quality.”).


         In August 1953, the Maxine Mine began operation as an underground coal mine pursuant to a contract between the Alabama By-Products Corporation (ABC), and the Alabama, Georgia, and Gulf Power Companies. Doc. 50-3 at 41-42, 50-8 at 103-24. The surface portion of this mine was on land adjacent to the Locust Fork, a navigable-in-fact tributary of the Black Warrior River. Docs. 53-6 at 24; 53-2 ¶ 8. Over the course of its operation, the Maxine Mine site included multiple mining refuse and rock disposal areas. See doc. 50-1 at 69-73, 119. The mining refuse pile[2] at issue in this case was originally created in the early 1950s on a ridge adjacent to the Locust Fork. See doc. 53-6 at 24, 26; 50-1 at 119. The pile is composed of coarse rock refuse, coal fragments, sandstone, shale, and washer rock removed and deposited by ABC during the course of its operations. See docs. 53-6 at 47; 55-2 at 16; 61-9 ¶ 13. The pile is either geologic overburden, hence the “GOB” or “GOB pile” reference, i.e., consisting of rock above or below the mine coal seams, as defined by Gordon Johnson, doc. 53-6 at 26, or according to Drummond's expert Lois George, it is “inter-burden, ” doc. 61-9 ¶ 13; 54-14 at 18, which BWR's expert Johnson explains consists of rock “within the mined seams, ” doc. 53-6 at 26.

         Over the course of the operation of Maxine Mine, ABC repeatedly worked with state regulators and environmental consultants to address the ongoing issue of acidic water that discharged from the refuse pile into the Locust Fork. See docs. 55-3 at 2; 55-4 at 2; 55-5 at 2; 55-1 at 28; 53-1 at 23; 55-21 at 5. For instance, in 1979, pursuant to the SMCRA, the Alabama Surface Mining Reclamation Commission (ASMRC, later known as ASMC) issued a notice of violation (NOV) to ABC concerning discharges of water with low pH and elevated iron and manganese levels from a portion of the refuse pile. Doc. 50-2 at 78-80. ABC subsequently retained environmental consultants P.E. LaMoreaux & Associates (“PELA”) to address the NOV, doc. 50-2 at 115-17, which the ASMC ultimately vacated and referred instead to the Alabama Water Improvement Commission (AWIC) for action, doc. 50-3 at 77.

         In 1982, ABC submitted an application to ASMC for a mining permit and a supplement to this permit application, which contained a supplemental permit map featuring a portion of the refuse pile. See docs. 50-1 at 119; 50-11 at 14-16. In February 1983, ASMC approved ABC's plan for reclamation of a western portion of the refuse pile, and ordered ABC to post a bond. Doc. 50-8 at 58. The plan involved covering the surface of this portion of the refuse pile with clay, planting vegetation, and constructing a “diversion ditch” to carry surface-runoff from the old refuse pile through a sediment basin and into the Locust Fork. See doc. 50-1 at 71-72. Subsequently, ABC reclaimed this portion of the refuse pile (referred to in ABC and Drummond documents as the “post-law” area because it post-dated the SMCRA) by capping it with clay, sloping it, and planting vegetation. Docs. 54-14 at 45; 55-1 at 45. However, the eastern portion of the refuse pile adjacent to the Locust Fork-referred to as the “pre-law” area-was never permitted or reclaimed by ABC or Drummond. See docs. 50-11 at 45; 54-14 at 45.[3]

         During its operation of the mine, ABC installed or improved ditches that ran through the refuse pile, and constructed basins and dams, as part of a drainage system from the refuse pile. Doc. 61-9 ¶ 20. Specifically, ABC built two dams, one upstream of the other, and sediment basins upstream of each dam to capture sediment from the refuse area. Docs. 53-1 at 30-32; 54-14 at 24-25; see docs. 53-6 at 74; 55-11; 55-12. These dams and sediment basins were built over an intermittent stream that discharged into the Locust Fork, a stream that BWR refers to as “Tributary 1” or “T1.” Doc. 53-6 at 74; see docs. 55-1 at 15, 17; 55-17 at 2; 54-14 at 24-25; 55-12. At least as far back as 1946, a slough existed at the confluence of this stream and Locust Fork and, by 1975, this stream had intermittent flow. See docs. 53-6 at 31; 54-1 at 21-22; 54-3 at 20; 61-9 ¶ 11; 54-3 at 20; 61-9 ¶ 11(b).

         In September 1983, ABC ceased coal mining operations at Maxine Mine. Doc. 50-2 at 100. Thereafter, in March 1985, ASMC issued an order stating that ABC had “substantially completed reclamation” at the “old coal processing waste disposal area” and that ABC's “corrective action and reclamation activities have effectively eliminated any contribution of non-permissible effluent” from the area, but that “there remains remedial corrective action necessary . . . on certain areas.” Doc. 50-8 at 52. ABC subsequently merged with Drummond, making Drummond the permittee for the mine and the “post-law” portion of the refuse pile. See doc. 55-1 at 29, 31-32; 50-3 at 43, 68. Finally, ASMC approved a final bond release for Drummond's permit for the mine in May 1992. Doc. 50-9 at 2-3.

         In 1988, ADEM reissued an existing NPDES permit to Drummond, which covered an outfall in the refuse pile that discharged to an “unnamed tributary of Locust Fork.” Doc. 50-4 at 41; 55-24. In June 1992, ASMC granted final Phase II and III bond release for the permitted section of the mine site. Docs. 50-9 at 1-2; 50-4 at 29-30. Then, in July 1992, ADEM released Drummond from monitoring requirements under its NPDES permit. Doc. 50-4 at 27. In March 1993, ADEM inspected the mine and did not find any “deficiencies or violations, ” stating in its reports that the “site appears to be totally reclaimed, ” there was “no discharge at the time of inspection, ” and that “no deficiencies or violations were noted.” Doc. 50-5 at 32-33. Since 1992, Drummond has not obtained a permit for the mine site, nor has it performed any maintenance or monitoring of the site. See doc. 53-1 at 39-40, 45. Since at least 2009, Drummond employees and other residents of the surrounding areas have used the site for hunting. Doc. 50-11 at 11.

         The ditches, dams, and basins at the refuse pile ABC constructed still exist today. Doc. 53-6 at 73-76; see doc. 61-9 ¶ 20. Currently, the upper and lower sediment basins above the lower dam contain sediment, some of which originated from the refuse area. See docs. 53-1 at 29, 33; 54-14 at 17, 24.[4] Each dam has an outlet or “spillway”: the outlet of the upper dam allows surface water to move to the lower sediment basin, and the outlet of the lower dam allows surface water to discharge to the Locust Fork. Doc. 53-1 at 31, 32, 34; see doc. 55-1 at 17. Man-made ditches drain surface runoff from both the “post-law” and “pre-law” portions of the refuse pile. See doc. 53-6 at 73-74. Surface water also percolates into sediment in the basins and flows as groundwater, where it discharges to the Locust Fork via groundwater seeps. Doc. 53-6 at 74, 78.

         This lawsuit's origins may trace back to May 2006, when Nelson Brooke, the “Riverkeeper” for BWR, first identified discolored riprap at the spillway of the lower dam to the Locust Fork and took readings that revealed acidic pH levels at the site. Doc. 50-10 at 3, 25. Brooke took no further action with these samples. See Doc. 53-2 ¶ 11. Instead, Brooke obtained additional samples of discharges at the lower dam spillway in February 2007, October 2011, and four years later in June 2015. Docs. 53-2 ¶¶ 13-15; 50-10 at 25-26. Thereafter, on June 29, 2016, BWR issued its notice of intent to sue Drummond for violations of the CWA and RCRA. Doc. 24, Ex. A. After the sixty-day notice period, BWR filed this citizen suit alleging CWA violations and, after the ninety-day notice period, amended its complaint to allege RCRA violations. Docs. 1; 21. As a result of the lawsuit, BWR conducted field investigations with Drummond representatives to obtain surface water, groundwater, and sediment samples in September 2016 and August 2017, and conducted a site inspection in June 2017. See docs. 56-1 ¶¶ 7-8; 56-3 at 44.

         IV. ANALYSIS

         The court turns now to the parties' respective contentions. Basically, BWR pleads four claims: (1) unpermitted discharges under CWA § 402 (Count I), (2) unpermitted discharges of dredged or fill material under CWA § 404 (Count II), (3) unpermitted discharges containing both “contaminated water” and dredged or fill material under CWA §§ 402 and 404 (Count III), and (4) a RCRA endangerment claim (Count IV). Presently before the court are Drummond's motion for summary judgment on all claims, doc. 48, and BWR's motion for partial summary judgment as to liability on its CWA § 402 claim (Count I) and RCRA claim (Count IV), doc. 51. The court addresses these motions, beginning with Count I on which both parties have moved for summary judgment.

         A. Alleged Violation of CWA § 402-Count I

         In Count I, BWR asserts that Drummond has violated CWA § 402 through unpermitted discharges to Locust Fork, “T1, ” and the “east” and “west” ditches. To prevail on this claim, BWR must show that Drummond (1) discharged; (2) a pollutant; (3) into waters of the United States (“WOTUS”); (4) from a point source; (5) without a permit.[5] See Parker, 386 F.3d at 1008. As to these elements, the parties do not dispute that Drummond has not had an NPDES permit since at least 1993, see doc. 50-4 at 91, and that Locust Fork, a navigable-in-fact tributary of the Black Warrior River, qualifies as a WOTUS. See docs. 27 ¶ 23; 53-2 ¶ 8; 59 at 3; SWANCC v. U.S. Army Corps of Engineers, 531 U.S. 159, 172 (2001) (holding that WOTUS includes waters that are or have been “navigable in fact, or which could reasonably be so made.”). All other elements of the claim, including whether T1 is a WOTUS, are in contention.

         1. Discharge of a pollutant

         The first element requires a showing of a discharge of a pollutant. Parker, 386 F.3d at 1008. The CWA defines “discharge of a pollutant” as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). BWR contends that Drummond has discharged pollutants because “acid mine drainage” (“AMD”)[6] and sediment flow from the refuse pile into Locust Fork, “T1, ” and the “east” and “west” ditches. Doc. 52 at 27. Although the Act's definition of “pollutant” does not explicitly include AMD, numerous courts have found that AMD is a pollutant and Drummond does not contest that proposition.[7] See, e.g., Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist., 13 F.3d 305, 309 (9th Cir. 1993) (finding that AMD was a pollutant); Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168, 1172 (D. Mont. 1995) (finding that AMD was a pollutant because it was composed, in part, of copper and zinc); W.Va. Highlands Conservancy, Inc. v. Huffman, 651 F.Supp.2d 512, 518 (S.D. W.Va. 2009) (finding AMD constituted “pollution” under the Act). Moreover, sediment from the mining refuse pile appears to qualify as “rock” or “sand” and, therefore, is also a “pollutant” under the Act. See, e.g., Driscoll v. Adams, 181 F.3d 1285, 1291 (11th Cir. 1999) (finding that “sand and silt” from timber harvesting and land development were pollutants); Rybachek v. U.S.E.P.A., 904 F.2d 1276, 1285-86 (11th Cir. 1990) (finding reasonable EPA's interpretation that excavated dirt was pollutant); N.C. Shellfish Growers Ass'n v. Holly Ridge Assocs., LLC., 278 F.Supp.2d 654, 677 (E.D. N.C. 2003) (finding that sediment is a pollutant under the CWA).

         BWR has produced extensive evidence of historical and ongoing discharges of AMD from the refuse pile into Locust Fork. This evidence includes, first, ABC's correspondence with state regulators and numerous reports produced by ABC's consultants, PELA, during the late 1970s and 1980s which describe acid water discharges from the refuse pile.[8] Second, according to BWR's expert, Gordon Johnson, the acid-based accounting analysis of his soil/sediment samples taken from various locations at the refuse pile indicate that “[a]ll mine waste samples are acidic and acid-generating.” Doc. 54-7 at 4. His conclusion is based, in part, on evidence showing that total sulfide concentrations in the samples were “below the method detection limit, which indicates the acidification process is either well progressed or complete in the samples that were collected.” Doc. 54-3 at 35. Third, BWR collected numerous surface water, sediment, and groundwater samples in 2016 and 2017 from various locations at the site, which its experts, Johnson, Anthony Brown, and Barry Sulkin, contend reveal AMD discharges based on the elevated concentrations of numerous metals and low pH in the samples. See doc. 53-6 at 60-61, 76, 79; 54-3 at 25-30; 56-1 at 3-8.[9] In particular, samples of surface water taken below the lower dam that runs into Locust Fork on September 20, 2016, June 12, 2017, and August 1, 2017, contain elevated concentrations of metals and acidic pH levels that Brown and Johnson contend are associated with AMD. Doc. 53-6 at 76. Sulkin also opines that surface water samples, taken near the spillway of the lower dam in September 2016, reflect low pH and “elevated” levels of various metals “far in excess of what would be coming from the unpolluted stream that once flowed there.” Doc. 56-2 at 6-8. Finally, the water samples taken from below the lower dam in 2016 and 2017 have higher metal concentrations and more acidic pH levels than the background samples from Locust Fork. Doc. 53-6 at 75, 90, 94-96. This evidence is sufficient to establish that AMD discharged from the site into the Locust Fork in September 2016, June 2017, and August 2017.[10]

         To no surprise, as one would expect when complex science matters are in issue, Drummond's experts Lynn Sisk, Bruce Wielinga, and Lois George disagree with BWR's experts, and contend that the data does not show AMD discharges. Specifically, Sisk contends that AMD is not discharging from the lower dam at the site because AMD “usually has some subsurface component associated with it, ” and she asserts that only “surface runoff” is discharging over the lower dam. Doc. 50-14 at 17-18. This contention does not alter the court's finding because Sisk admits that she did not take any water or soil samples from the refuse pile to support her conclusion that AMD could not flow over the lower dam. Id. at 18. For his part, Wielinga contends that findings that sulfide was below the analytical detection limit in Johnson's soil/sediment samples means that there are no “sulfide-bearing minerals” in the “GOB [geologic overburden] waste” that could generate AMD. See docs. 61-6 ¶ 5; 61-32 at 27-28. Critically, however, Wielinga fails to contest Johnson's explanation that the lack of sulfide indicates the oxidation process that generates AMD is complete. Lastly, Drummond, through its expert George, contends that Brown cannot fairly and accurately testify that surface water “with elevated concentrations of pollutants associated with AMD” is ultimately discharged to Locust Fork, given that storm water runoff is “driven . . . by precipitation” and BWR's samples were taken from “essentially standing or stagnant points.” Doc. 61-9 ¶ 28. This contention also does not alter the court's finding because George and Drummond's other experts do not dispute the validity of BWR's data showing the presence of elevated levels of metals and acidic pH in water samples taken at the lower dam where it discharges into Locust Fork and along the banks of the Locust Fork below the dam. In that respect, while Drummond's experts have shown general weakness in their counterparts' analyses on the issue of AMD, their showing is insufficient to create an issue of fact regarding the discharge of AMD into Locust Fork, a water of the United States. See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (“A mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.”).

         2. To waters of the United States

         To prevail, BWR must also show that the discharge of a pollutant was to a WOTUS. As stated previously, Drummond concedes that the Locust Fork is a WOTUS. At issue as to this element is BWR's contention that Drummond also discharges alleged pollutants from the refuse pile to “T1, ” the “east” ditch, and the “west” ditch and that each of these water bodies are purportedly “navigable waters, ” or “waters of the United States, ” under the CWA. See 33 U.S.C. 1362(7). To address whether “T1” or the ditches qualify as a navigable water, the court turns to Rapanos v. United States for guidance. Rapanos involved wetlands that drained into navigable-in-fact waters, and the Supreme Court issued a fractured opinion construing the term “navigable waters.” 547 U.S. 715 (2006). Justice Scalia's plurality opinion held that wetlands could only constitute “navigable waters” if (1) they are adjacent to a “relatively permanent, standing or continuously flowing [body] of water” and (2) if they maintained a “continuous surface connection” to that water. Id. at 739, 742 (plurality). Justice Kennedy's concurring opinion, however, held that the applicable test required a showing of a “‘significant nexus' to waters that are or were navigable in fact or that could reasonably be made so.” Id. at 759 (Kennedy, J., concurring). Subsequently, in United States v. Robison, the Eleventh Circuit determined that Justice Kennedy's concurring opinion was controlling for the purposes of determining whether a creek constituted “navigable waters” under the CWA. 505 F.3d 1208, 1219-22 (11th Cir. 2007). Thus, although Rapanos only involved wetlands, Robison indicates that Justice Kennedy's “significant nexus” test controls whether a “water or wetland” qualifies as waters of the United States, and that this is an issue for the factfinder. 505 F.3d at 1218, 1224 n.21.

         As for what constitutes a “significant nexus, ” Justice Kennedy's opinion is instructive:

Wetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters, ” if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands' effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”

547 U.S. at 781 (Kennedy, J., concurring). Furthermore, Justice Kennedy's opinion offered examples of the indicia of a “significant nexus, ” including considering a “measure of the significance of the connection for downstream water quality.” Id. at 784. Accordingly, regardless of whether “T1, ” the “east” ditch, or the “west” ditch is or was a tributary of Locust Fork, the dispositive question is whether “T1” or each ditch significantly affects the physical, chemical, and biological integrity of Locust Fork. Id. at 781; see also Robison, 505 F.3d at 1222.

         The “significant nexus” test is a “flexible ecological inquiry into the relationship between the [waters] at issue and traditional navigable waters.” See Precon Dev. Corp. v. U.S. Army Corps of Engineers, 633 F.3d 278, 294 (4th Cir. 2011) (quoting Rapanos, 547 U.S. at 759 (Kennedy, J., concurring)). The requisite connection can be established by quantitative or qualitative physical evidence. See id. (deciding whether there was “enough physical evidence-quantitative or qualitative” to uphold a finding of a “significant nexus”); United States v. Cundiff, 555 F.3d 200, 210-11 (6th Cir. 2009). However, the Fourth Circuit has observed:

[I]n announcing this test, [Justice Kennedy] clearly intended for some evidence of both a nexus and its significance to be presented. Otherwise, it would be impossible to engage meaningfully in an examination of whether a wetland had “significant” effects or merely “speculative or insubstantial” effects on navigable waters.

Precon, 633 F.3d at 294.

         Justice Kennedy's concurrence left open the possibility that an intermittent stream can constitute a WOTUS, noting:

[E]ven granting the plurality's preferred definition, . . . the dissent is correct to observe that an intermittent flow can constitute a stream, in the sense of a current or course of water or other fluid, flowing on the earth, while it is flowing. It follows that the Corps can reasonably interpret the Act to cover the paths of such impermanent streams.

Rapanos, 547 U.S. at 770 (Kennedy, J., concurring). Accordingly, courts applying the “significant nexus” test have found that intermittent streams may have a sufficient nexus to traditional navigable waters to constitute WOTUS. See Wis. Res. Prot. Council, Ctr. for Biological Diversity v. Flambeau Min. Co., 903 F.Supp.2d 690, 715 (W.D. Wis. 2012) (finding that a tributary with intermittent flow satisfied the “significant nexus” test); United States v. HVI Cat Canyon, Inc., 314 F.Supp.3d 1049, 1060-61 (C.D. Cal. 2018) (finding that non-perennial tributaries were “navigable waters”). Moreover, several courts considering whether waterways qualify as WOTUS have found that the downstream transport of pollutants from the water at issue into a traditional navigable water is indicative of a significant nexus. See Cundiff, 555 F.3d at 211 n.4 (“[I]f one dropped a poison into the [defendants'] wetlands, . . . it would find its way to the two creeks and the Green River, therefore indicating a significant chemical, physical, or biological connection between the wetlands and the nearby navigable-in-fact waters.”); United States v. Hubenka, 438 F.3d 1026, 1034 (10th Cir. 2006) (“[T]he potential for pollutants to migrate from a tributary to navigable waters downstream constitutes a ‘significant nexus' between those waters.”); Flambeau Min. Co., 903 F.Supp.2d at 715 (finding “significant nexus” in part because intermittent stream delivered water containing pollutants to navigable-in-fact river); United States v. Vierstra, 803 F.Supp.2d 1166, 1172 (D. Idaho 2011), aff'd, 492 Fed.Appx. 738 (9th Cir. 2012) (finding “significant nexus” where canal and creek were “significant contributors of total suspended solids (sediment) and coliform bacteria to the Snake River”). With this background in mind, the court turns now to the parties' respective contentions about “T1” and the ditches.

         a)“Tributary 1” ...

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