South Side Quarry, LLC v. Louisville & Jefferson Cnty. Metro. Sewer Dist.

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0047p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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SOUTH SIDE QUARRY, LLC; JASON LEE STANFORD,
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Plaintiffs-Appellants, │
> No. 21-5389
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v. │
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LOUISVILLE & JEFFERSON COUNTY METROPOLITAN │
SEWER DISTRICT, │
Defendant-Appellee. │
┘
Appeal from the United States District Court for the Western District of Kentucky at Louisville.
No. 3:18-cv-00706—David J. Hale, District Judge.
Decided and Filed: March 11, 2022
Before: SILER, COLE, and NALBANDIAN, Circuit Judges.
_________________
COUNSEL
ON BRIEF: John D. Cox, Petersen S. Thomas, LYNCH, COX, GILMAN & GOODMAN,
PSC, Louisville, Kentucky, for Appellants. Adam T. Goebel, Adam C. Reeves, STOLL
KEENON OGDEN PLLC, Louisville, Kentucky, for Appellee.
_________________
OPINION
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NALBANDIAN, Circuit Judge. This case tells a tale of two creeks. The first, Pond
Creek, drains into a watershed highly prone to flooding. The second, Fishpool Creek, diverts
excess stormwater from that watershed into Vulcan Quarry through a channel maintained by the
Louisville & Jefferson County Metro Sewer District. For the owner of Vulcan Quarry—South
Side LLC—Fishpool Creek’s diversion created only the worst of times. According to South
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Side, Metro Sewer District used the diversion channel to flood and pollute Vulcan Quarry, all in
violation of the Clean Water Act and Kentucky state law.
Metro Sewer District responded that the diversion channel connecting Fishpool Creek
and Vulcan Quarry is part of a flood control project that was planned and constructed years ago.
And that South Side knew this when it bought the property. According to Metro Sewer District,
this meant that some of South Side’s claims were time-barred. It also contended that South Side
failed to give it sufficient notice of the pollution problems before suing.
The district court sided with Metro Sewer District and dismissed South Side’s claims.
For the following reasons, we affirm its decision.
I.
A.
The Clean Water Act’s Framework. Congress enacted the Clean Water Act (CWA) to
“restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
Nat’l Wildlife Fed’n v. Consumers Power Co., 862 F.2d 580, 582 (6th Cir. 1988) (quoting
33 U.S.C. § 1251). To reach this goal, the CWA encompasses a “comprehensive statutory
system for controlling water pollution.” Id. The “cornerstone” of this system is the National
Pollution Discharge Elimination System (NPDES) permit program. Nat. Res. Def. Council, Inc.
v. EPA, 822 F.2d 104, 108 (D.C. Cir. 1987); see also 33 U.S.C. § 1342. With a permit, a person
may discharge pollutants so long as he stays within the permit’s limits. But without a permit, a
“discharge . . . [is] unlawful.” 33 U.S.C. § 1311(a).
The CWA’s permit program relies on “cooperative federalism” to manage “the nation’s
water resources.” Catskill Mountains Chapter of Trout Unlimited, Inc. v. EPA, 846 F.3d 492,
502 (2d Cir. 2017) (internal quotations omitted). To this end, it affirms that states “typically
control the NPDES permitting programs as they apply to waters within their borders, subject to
EPA approval.” Id. at 502 (citing 33 U.S.C. §§ 1314(i)(2), 1342(b)–(c)). In the same vein, the
CWA preserves states’ “primary responsibilities and rights” to “allocate quantities of water
within [their] jurisdiction.” 33 U.S.C. §§ 1251(b), (g). This cooperative model is found in the
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state of Kentucky. There, the Kentucky Natural Resources and Environmental Protection Cabinet
issues Kentucky Pollution Discharge Elimination System (KPDES) permits for waters within the
Commonwealth. See 48 Fed. Reg. 45497-02 (Oct. 6, 1983); 401 Ky. Admin. Reg. 5:050 (2007);
see also Ky. Waterways All. v. Johnson, 540 F.3d 466, 470 (6th Cir. 2008).
Together, the CWA and the KPDES permits create a patchwork of “effluent limitations”
that limit the discharge of pollutants. See 33 U.S.C. § 1362(11). These effluent limitations
“restrict the quantities, rates, and concentrations” of pollutants discharged by a permit holder.
Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992) (citing 33 U.S.C. §§ 1311, 1314). If a person
discharging a pollutant fails to meet an effluent limitation or standard found in a regulation or
permit—or fails to get a permit—he violates the CWA. When violations occur, the EPA and the
states form the first line of defense. They retain the “primary” power to “enforce[]” the CWA.
Askins v. Ohio Dep’t of Agric., 809 F.3d 868, 875 (6th Cir. 2016).
In limited circumstances, though, the CWA also permits citizen suits. See 33 U.S.C.
§ 1365. Such suits “serve[] only as backup, ‘permitting citizens to abate pollution when the
government cannot or will not command compliance.’” Askins, 809 F.3d at 875 (quoting
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62 (1987)). Citizen
suits must allege a violation of “an effluent standard or limitation” in the CWA. See 33 U.S.C.
§ 1365(a)(1).
But before a potential plaintiff can file a citizen suit, he must “strictly comply with
statutory conditions precedent to suit.” Cooper v. Toledo Area Sanitary Dist., 797 F. App’x 920,
926 (6th Cir. 2019) (Kethledge, J., concurring) (alterations omitted) (quoting Hallstrom v.
Tillamook Cnty., 493 U.S. 20, 28 (1989)). In the context of the CWA, that condition takes the
form of a notice requirement. The notice requirement mandates that a plaintiff give the
purported polluter warning of his intent to sue and of the alleged violation. See 33 U.S.C.
§ 1365(b)(1)(A).
With this framework in mind, we turn to the dispute in this case.
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B.
Factual Background. In 1996, Congress gave its stamp of approval to a stormwater
diversion system in Jefferson County, Kentucky. See Water Resources Development Act of
1996, Pub. L. No. 104-303, 110 Stat. 3658. The system, researched and designed by the United
States Army Corps of Engineers, created a flood-control scheme for Pond Creek. Pond Creek
drained into a large watershed in the Louisville area. This watershed had the potential to cause
widespread flooding and millions of dollars of damage. The Corps’ plan proposed to preempt
the flooding with a network of detention basins, channels, roads, and wetland restoration.
One of the network’s key components involved a Pond Creek tributary, Fishpool Creek,
and a nearby basin, Vulcan Quarry. Fishpool Creek ran close to the edge of Vulcan Quarry.
During storms, the quarry flowed downstream and into Fishpool Creek. This caused flooding
problems for the nearby residential areas.
The Corps’ plan suggested that a more formal connection between the quarry and the
creek would fix the problem. Excess stormwater from Fishpool Creek would flow into a short
diversion channel during periods of heavy rainfall. That channel then would fill Vulcan Quarry
through a spillway. After the flooding subsided, the floodwater would drain back into Fishpool
Creek through a pipe. This project would “rechannel” Fishpool Creek and turn the quarry into
the creek’s “detention basin.” (R. 11-2, PageID 161, 169.)
The Corps partnered with Louisville & Jefferson County Metro Sewer District (MSD) to
complete the project. The Corps would design and construct Fishpool Creek’s diversion
channel. MSD, for its part, would obtain the property rights needed for the project and maintain
the system.
With the partnership in place, MSD went about acquiring the property rights to Vulcan
Quarry. First, it tried to negotiate with Vulcan Quarry’s owners. But those talks quickly broke
down. The parties disagreed about the price of a potential easement and the conditions attached
to it. One specific point of contention? Water quality. The quarry’s owners wanted MSD to
prevent water contamination and clean up any pollution. MSD responded that the project was a
“storm water project,” not a “sanitary sewer water treatment project.” (R. 11-6, PageID 220.)
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So there would be “no treatment” or “monitoring” of the “water quality” once the diversion
channel was complete. (Id.)
With negotiations at a stalemate, MSD filed an eminent domain action in the Jefferson
Circuit Court. But instead of requesting an easement, MSD asked the court for the full title to
Vulcan Quarry.
The court split the difference between the MSD and the owners. It awarded MSD an
easement instead of the whole property. But it refused “to place conditions”—like water
treatment obligations—on the easement. (R. 1-1, PageID 57.) Instead, the court recognized that
the channel and spillway diverting Fishpool Creek would “affect the whole” of Vulcan Quarry.
(R. 11-6, PageID 229.) The water that entered the Quarry would naturally include “debris wash”
and “whatever the water picks up.” (Id.) The resulting “flowage easement” gave MSD the
“perpetual right, power, privilege and easement permanently to overflow, flood and submerge”
Vulcan Quarry. (R. 11-7, PageID 233.)
After checking the easement off its list, MSD moved to the next step: acquiring a stream
construction permit from the Kentucky Natural Resources and Environmental Protection Cabinet
(the Cabinet). This permit gave MSD approval to construct a “diversion structure to direct
floodwater” into the quarry. (R. 11-8, PageID 237.) But like the easement, the permit didn’t
condition its approval on a promise to treat the water or clean up any pollutants.
With the easement and permit in hand, the Corps began construction and completed the
project in 2000. For the next 12 years, excess stormwater flowed from Fishpool Creek into
Vulcan Quarry without issue.
This status quo changed when South Side LLC bought Vulcan Quarry in 2012. South
Side disliked that a diversion channel connected its new quarry to Fishpool Creek. So with the
ink barely dry on the deed, it took legal action and filed a motion in the long-closed eminent
domain proceeding. This motion sought to hold MSD in contempt of the order that awarded the
easement in the first place. South Side alleged that MSD had exceeded its easement by diverting
all of Fishpool Creek—“rain or shine”—into Vulcan Quarry. (R. 11-13, PageID 486.) This
perpetual flooding, it complained, amounted to a permanent taking of Vulcan Quarry.
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MSD responded that the scope of the easement was “an entirely separate claim from one of
contempt.” (R. 11-13, PageID 503.) Soon after, South Side dropped the action.
Procedural History. Five years later, South Side tried a new litigation strategy. This
time, it wanted to bring MSD into federal court using the CWA. So on July 27, 2018, South Side
sent MSD notice of its intent to sue. The notice rehashed many of South Side’s claims about the
scope of the easement. MSD, it complained, had “permanently diverted” a “significant portion of
Fishpool Creek” into Vulcan Quarry. (R. 1-1, 43.) And South Side contended this diversion
exceeded the property right limitations—like volume limitations and water discharge
limitations—implicit in the easement.
The notice also included new accusations of septic pollution. South Side claimed the
water coming over the spillway “changed to a ‘[feces]-smelling murky brown’” around 2014.
(Id. at 40.) After some testing, South Side had found that the “E. coli, coliform and fecal matter
levels” in the quarry “‘were off the charts high.’” (Id. at 40.) Together, the excess wastewater
and pollution showed MSD used “Vulcan Quarry as a gigantic septic tank/settling
pond/dewatering pond/debris filter.” (Id. at 37.)
All in all, South Side’s notice alleged that MSD’s discharge of stormwater and pollutants
violated the CWA’s “general prohibition on the dumping of pollutants into U.S. waters,” the
easement, a Consent Decree, and various Kentucky-issued permits. (Id. at 44–48.) Those
permits included the Stream Construction Permit (described above), MSD’s stormwater
discharge permit (called the MS4 permit), and MSD’s wastewater treatment permits. As for the
Consent Decree, it came about in 2005 when the Cabinet, the EPA, and MSD agreed to a series
of steps designed to reduce the effects of combined and sanitary sewer overflows.
After it sent the notice, South Side sued. Its complaint included six counts of CWA
violations, along with several state law claims for trespass, nuisance, and the like. MSD
responded with a motion to dismiss for failure to state a claim.
The district court granted MSD’s motion. The court bifurcated South Side’s complaint
into two distinct kinds of pollution claims: (1) pollution via excess wastewater and (2) pollution
via sewage. It dismissed the excess wastewater claims as time-barred under the five-year statute
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of limitations. See 24 U.S.C. § 2462. South Side, it noted, had brought excess stormwater
claims against MSD in the 2013 contempt proceedings. The district court found these claims
showed South Side knew about its potential CWA claim more than five years earlier. As for the
sewage claims, the district court dismissed those because South Side didn’t give MSD sufficient
notice about the pollution problem before it filed suit. It found that South Side’s notice had
failed to (1) identify sewage as a pollutant, (2) provide dates the pollution took place, and
(3) describe the source of the pollution.1
South Side appealed.
II.
We review de novo a district court’s decision on a Rule 12(b)(6) motion to dismiss.
Theile v. Michigan, 891 F.3d 240, 243 (6th Cir. 2018). To survive a motion to dismiss, a
plaintiff can’t make conclusory allegations that the defendant violated the law and leave it at that.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint must present “sufficient
factual matter” to support a “plausible” inference of wrongdoing. Id. (citation omitted).
Because our review is de novo, we may affirm the district court’s decision “for any
reason in the record, including alternative grounds raised below and here.” Tschappatt v.
Crescent Metal Prods., 798 Fed. App’x 887, 890 (6th Cir. 2020) (citing EA Mgmt. v. JP Morgan
Chase Bank, N.A., 655 F.3d 573, 575 (6th Cir. 2011)).
III.
This case turns on whether South Side satisfied the CWA’s pre-suit notice requirement.2
Recall that the CWA permits citizen suits for alleged violations of an “effluent standard or
1After dismissing the federal claims, the district court declined to exercise supplemental jurisdiction over
South Side’s state law claims and dismissed them without prejudice. On appeal, South Side does not contest this
aspect of the district court’s decision.
2We decide this case on notice grounds alone. This is because South Side’s claims are likely not time-
barred. If South Side had sued MSD for excess wastewater pollution or an analogous claim in 2013, the statute of
limitations might bar its CWA claims. But we are not so sure that it did. South Side’s attempt to hold MSD in
contempt instead seems to be a suit of a different stripe.
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limitation,” which, in this case, means KPDES permits or conditions of those permits. See
33 U.S.C. § 1365(a)(1); see also City of Highland Park. v. EPA, 817 F. App’x 42, 46–47 (6th
Cir. 2020). Similarly, the CWA’s pre-notice provision requires the plaintiff provide “sufficient
information to permit the recipient to identify the specific standard, limitation, or order alleged to
have been violated.” 40 C.F.R. § 135.3(a) (emphasis added). The notice must include other
information as well, including “the activity alleged to constitute a violation,” “the person or
persons responsible,” and the “location” and “dates” of the violation. Id.The purpose of this detailed description? To allow the alleged violator to identify any
violation, bring its conduct into compliance with the law, and avoid the suit. See Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987); see also Sierra Club v.
Hamilton Cnty. Bd. of Cnty. Comm’rs, 504 F.3d 634, 644 (6th Cir. 2007) (stating a plaintiff’s
pre-suit notice should “contain sufficient information to allow Defendants to identify all
pertinent aspects of its [alleged] violations without extensive investigation”).
One last note. Satisfying the pre-suit notice requirement is a “mandatory condition
precedent to bringing a citizen suit.” Cooper, 797 F. App’x at 923 (citing Hallstrom, 493 U.S. at
31). If a plaintiff fails to provide sufficient notice, a district court “must dismiss the action as
barred” under the CWA. Atl. States Legal Found., Inc., v. United Musical Instruments, 61 F.3d
473, 478 (6th Cir. 1995); see also Greene v. Reilly, 956 F.2d 593, 594 (6th Cir. 1992) (explaining
that “the notice requirement is not a mere technical wrinkle of statutory drafting or formality to
be waived by the federal courts” (citation omitted)).
Here, most of South Side’s CWA claims rest on violations of existing regulations,
permits, or property rights. But South Side also bases its CWA suit on a permit that doesn’t
exist. It claims MSD needed—and failed—to obtain a KPDES permit specific to the Vulcan
In the contempt proceedings, South Side never mentioned wastewater, excess wastewater, or any kind of
pollution. Rather, its claims focused on the construction flaws in the diversion channel. These flaws caused
floodwater to enter the quarry and never drain out properly. In South Side’s view, this meant MSD overburdened
the easement, trespassed, and “misappropriated” a property “interest in the Quarry Property through a
permanent taking.” (R. 11-13, PageID 486–87.) True, South Side repeats many of these property-based arguments
in its pre-suit notice. But that doesn’t change the fact that pollution, much less wastewater pollution, did not play a
role in the 2013 contempt proceedings. And since South Side’s satisfaction of the notice requirement decides this
case, we need not decide whether some of its claims were time-barred anyway.
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Quarry detention basin. This dichotomy means the outcome of South Side’s citizen suit turns on
two corresponding inquiries. First, whether MSD’s diversion system violated a specific
standard, limitation, or order found in an existing KDPES permit. And second, whether MSD
failed to obtain a KPDES permit specific to its operation of the diversion system. We consider
each in turn.
A.
In its pre-suit notice, South Side mentions six potential “standards, limitations, or orders”
that could serve as the basis for its CWA citizen suit. These are: (1) MSD’s easement; (2) MSD
and the Corps’ Stream Construction Permit; (3) the Consent Decree between MSD, the EPA, and
the Kentucky Cabinet; (4) agreements about upstream point sources; (5) the Clean Water Act’s
general prohibition on the discharge of pollutants; and (6) MSD’s various KPDES permits.3
Each of the bases South Side relies on suffers from one of two problems. Some bases—
like the easement, the Stream Construction Permit, and the Consent Decree—can’t sustain a
CWA citizen suit in the first place. Others—like the KPDES permits—could serve as the basis
of a CWA claim. The problem? South Side never identifies a permit-specific “effluent standard
or limitation” that MSD violated. This means South Side strikes out on each if its potential bases
for a CWA suit.
The Easement. South Side believes that MSD has long violated the “property right
limitations” found in its easement for Vulcan Quarry. (R.1-1, PageID 40.) Those limitations, it
claims, include restrictions on water “volume,” “triggering event[s],” the “duration” of
floodwater storage, and “water discharges” from upstream developments. (Id.)
3As a general rule, we only consider matters within the pleadings when ruling on a 12(b)(6) motion. This
review includes documents “attached to the pleadings.” Com. Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327,
335 (6th Cir. 2007). And it also extends to documents “referred to in the pleadings” if those documents are
“integral” to the plaintiff’s “claims.” Id. at 335–36. South Side attached its pre-suit notice to the complaint. The
documents mentioned in the notice—like the various permits, the easement, and the Consent Decree—are “integral”
to South Side’s CWA claims against MSD. So we may consider them here without “converting [MSD’s] motion to
dismiss into one for summary judgment.” Id. at 336.
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To start, the source of these enumerated, property-right limitations is unclear. MSD’s
flowage easement, after all, gave it the “perpetual right, power, privilege and easement
permanently to overflow, flood and submerge” Vulcan Quarry. (R. 11-7, PageID 233.) The
Jefferson Circuit Court also refused to attach any conditions—including conditions related to the
treatment of pollutants—to MSD’s use of the quarry. South Side’s notice lists no other source
for the property-right limitations it reads into the easement.
But even if South Side could point to a textual source for the easement’s limitations on
water volume and storage, it still would come up short. Why? The easement is simply not an
“effluent standard or limitation” under the CWA. South Side’s argument to the contrary goes as
follows: the easement contains implicit limitations on MSD’s use of the quarry; MSD violates
those limits; those limits are somehow incorporated into unnamed KPDES permits; MSD is
violating those permits; so MSD is violating the CWA. (See, e.g., R. 1, PageID 18 (“MSD is in
violation of the Clean Water Act because its diversion of Fishpool Creek, in excess of the
Easement is in excess of any permit, which must be limited by the Easement, and is therefore in
excess of limitations of the CWA.”).)
This conclusory logic cannot satisfy the notice requirement. South Side points to no
KPDES permit that incorporates the easement or even mentions Vulcan Quarry. And it cites no
Kentucky regulation connecting property rights, like an easement, with the CWA. In short,
South Side offers no theory as to how MSD’s use of the flowage easement could serve as the
basis of CWA claim. South Side’s references to the easement and “property right limitations”
would in no way allow MSD or the EPA to detect and resolve any alleged violation.
The Construction Permit. South Side’s attempt to invoke MSD and the Corps’ Stream
Construction Permit follows a similar path. MSD, it alleges, acted in bad faith when it applied
for a “Stream Construction Permit” to create “the Vulcan Quarry Detention Basin.” (R. 1-1,
PageID 44.) Because of that bad faith, South Side claims MSD’s use of the quarry is a
“permanent taking” that somehow violates Kentucky-issued “permits” and the CWA. (Id. at 43.)
South Side’s inclusion of the Stream Construction Permit moves it no closer to
identifying a specific standard, limitation, or order MSD might have violated. True, a
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subdivision of the Cabinet—the Kentucky Department of Water—granted MSD the Stream
Construction Permit. But the permit itself is not a KPDES permit subject to EPA enforcement or
control. Instead, the Cabinet issued the permit using its “exclusive” authority to regulate the
construction of “dams . . . or other obstructions across or along any stream.” Ky. Rev. Stat.
§ 151.250(3). So the Stream Construction Permit cannot serve as the basis for a CWA suit.
The Consent Decree. The Consent Decree perhaps presents a closer call than the
easement or Stream Construction Permit. The EPA, the Cabinet, and MSD entered the original
Consent Decree in 2005 and an amended version in 2009. The agreement described the steps
MSD would take to reduce and mitigate the effects of sanitary sewer overflows, combined sewer
overflows, and other discharges. (Id. at 350, 406). The plan implementing those steps, also
found in the Consent Decree, continues through 2024. The Consent Decree, unlike the easement
and Stream Construction Permit, addresses effluent limitations and standards found in the CWA
and KPDES permits. But South Side’s notice fails to describe a single provision of the Consent
Decree that relates to Vulcan Quarry or that MSD has violated since it entered the agreement.
What’s more, even if South Side did identify a specific provision, it would lack standing
to enforce the Consent Decree anyway. The terms of the Consent Decree expressly reserve the
right of enforcement to the EPA, the Cabinet, and MSD. Besides, we have long held that only
parties to a consent decree may enforce its terms in a collateral proceeding. Vogel v. City of
Cincinnati, 959 F.2d 594, 598 (6th Cir. 1992). This enforcement limitation holds true even for
“intended third-party beneficiaries.” Aiken v. City of Memphis, 37 F.3d 155, 168 (6th Cir. 1994);
see also Sanders v. Republic Servs. of Ky., LLC, 113 F. App’x 648, 650–51 (6th Cir. 2004)
(holding that the plaintiffs lacked standing to enforce a Consent Decree through a CWA citizen
suit). So South Side, who is not a party to the Consent Decree, cannot use the agreement to
satisfy the notice requirement.
Agreements about Upstream Point Sources. South Side claims “MSD [] improperly
authorized point sources upstream of Vulcan Quarry.” (R. 1-1, PageID 44.) To this end, South
Side alleges MSD “engaged in agreements with owners of multiple tracts upstream of Vulcan
Quarry.” (Id. at 43.) Those agreements supposedly contemplated that the tract owners would
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use Vulcan Quarry as some sort of septic system. (Id.) Although this allegation relates to
Vulcan Quarry and point-source pollution, South Side fails to tie its general charge to anything
specific. The notice doesn’t list the tracts of land involved, the owners who made the agreements
with MSD, the location of these polluting point sources, or any effluent limitation or standard
that might apply. So its reference to these agreements moves it no closer to hitting the notice
target.
The CWA. South Side’s notice contends that MSD is violating the CWA’s “general
prohibition on the dumping of pollutants into U.S. waters.” (Id. at 47–48.) It cites 33 U.S.C.
§ 1311, which prohibits the “discharge of any pollutant by any person” without a permit, to make
its point. See also 33 U.S.C. § 1342. But the CWA’s citizen-suit provision doesn’t authorize
citizen suits for violating some general prohibition. Instead, it authorizes suits for violating
“effluent standard[s] or limitation[s]” found in the CWA or orders about those standards and
limitations. See Askins, 809 F.3d at 872–73. As South Side itself notes, MSD has multiple
KPDES permits authorizing the treatment and discharge of stormwater and wastewater. But
without a specific allegation that MSD violated a permit’s effluent standards or limitations,
South Side can’t satisfy the notice requirement, much less make out a CWA claim. Accord
33 U.S.C. § 1342(k) (“[C]ompliance with a permit issued pursuant to [the NPDES program]
shall be deemed compliance, for purposes of [citizen suits], with sections 1311, 1312, 1316,
1317, and 1343.”). So South Side’s appeal to the CWA’s “general prohibition,” without more,
can’t bypass the notice requirement and move South Side past the citizen-suit starting line.
KPDES Permits. South Side’s notice describes three KPDES permits applicable to MSD:
(1) the MS4 permit; (2) the Morris Forman Waste Water Treatment Facility permit; and (3) the
General KPDES Stormwater Construction Permit. KPDES permits, unlike the sources listed
above, can serve as the basis for a CWA suit. But South Side’s inclusion of these permits only
gets it halfway there. This is because its notice doesn’t identify any “specific standard[s],
limitation[s], or order[s]” in the KPDES permits that MSD violated. See 40 C.F.R. § 135.
Start with the MS4 permit. MSD operates Jefferson County’s Municipal Separate Storm
Sewer System (known as an MS4 system). It receives a KPDES permit, called the MS4 permit,
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to do so. The MS4 permit lists detailed requirements about the discharge of pollutants in the
MS4 system. South Side’s notice claims that MSD’s MS4 permit for stormwater discharge
expired in 2004 and hasn’t been renewed since. According to South Side, this means MSD is
“dumping pollution in Vulcan Quarry in violation of its MS4 permit.” (R. 1-1, PageID 45.)
Contrary to South Side’s assertion, MSD’s most recent MS4 permit went into effect in
2017 and expires in 2022. But even if South Side did point to the updated MS4 permit in its
notice, the result would be the same. The notice omits any mention of an effluent standard or
limitation that MSD violated.
Next, the wastewater treatment permits. South Side asserts that the Commonwealth “has
issued” KPDES permits to MSD for “the 27 waste water treatment facilities” under MSD’s
control. (R. 1-1, PageID 46.) It cites only one of those permits—the Morris Forman Waste
Water Treatment Facility—by name. (Id. at 47.) But this brief reference makes up the whole of
South Side’s allegation. The notice describes no specific provision in any of the wastewater
treatment permits with which MSD failed to comply.
Last, the General KPDES Stormwater Construction Permit. The Cabinet’s Division of
Water issues a general permit authorizing the discharge of stormwater pollutants during
construction activities. South Side cites an expired version of that permit. Then it points out that
the permit requires the permittee “to take all reasonable steps to minimize or prevent
discharges.” (Id. at 47.) But like its references to the MS4 permit and the wastewater treatment
permits, South Side never explains how the permit’s provisions relate to MSD and Vulcan
Quarry.
***
In sum, South Side’s notice didn’t identify a single “specific standard, limitation, or
order” in an existing KPDES permit that MSD violated. See 40 C.F.R. § 135. Without that
information, MSD cannot identify its violation, correct it, and bring its conduct into compliance
with the CWA. So at least for any alleged violations of MSD’s current KPDES permits, South
Side has failed to satisfy the notice requirement.
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B.
Next, we turn to South Side’s remaining assertion: MSD is diverting Fishpool Creek into
Vulcan Quarry “without [a] permit.” (R. 1-1, PageID 44.) MSD, South Side claims, needs a
“NPDES or KPDES permit to use Vulcan Quarry.” (Id. at 45.) And MSD, it concludes, is
“diverting and redirecting Fishpool Creek into Vulcan Quarry . . . without sufficient permits.”
(Id. at 47.) In essence, South Side believes MSD needs a KPDES permit specific to Vulcan
Quarry before it can rechannel water from Fishpool Creek, along with whatever pollutants that
water contains.
First, as a factual matter, we note that MSD didn’t receive a KPDES permit when it first
built the Fishpool Creek diversion system. The Cabinet didn’t demand otherwise. Instead, MSD
only needed a stream construction permit. The Cabinet issued that permit. And it didn’t require
MSD to obtain a separate KPDES water treatment permit before the Corps could start
construction.
Second, as a legal matter, the CWA doesn’t sweep every water diversion project into its
permitting scheme. And MSD’s rechanneling of Fishpool Creek is just the kind of water
allocation system that falls outside the CWA’s regulatory ambit. To begin, the diversion system
isn’t the kind of discharge that needs a permit under the CWA. But even if the opposite were
true, the EPA’s Water Transfer Rule would exempt the channel system from the permit
requirement.
Discharge. The CWA specifically regulates the “discharge” of pollutants. 33 U.S.C.
§ 1311(a). It defines “discharge” to mean “any addition of any pollutant to navigable waters
from any point source.” 33 U.S.C. § 1362(12)(A). “Navigable waters,” for its part, includes
“the waters of the United States.” Id. § 1362(7).
In South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95, 109–112
(2004), the Supreme Court elaborated on the CWA’s discharge definition. Miccosukee dealt
with a pumping facility that transferred polluted water from a canal into a nearby reservoir. Id.at 98–99. The Court held that the pumping of polluted water between “two parts of the same
water body” was not a discharge under the CWA. Id. at 109. Its reasoning focused on whether
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the canal and the reservoir were “meaningfully distinct” bodies of water. Id. at 112. If so, the
flow of water between the two would count as a discharge and require a NPDES permit. Id. But
if not, no permit was required.
The Court reiterated Miccosukee’s explanation of “discharge” in Los Angeles County
Flood Control District v. Natural Resources Defense Council, Inc., 568 U.S. 78, 80 (2013). In
that case, it considered water that flowed from a river, into a concrete channel, and then back into
the same river. Id. at 80–82. The Court concluded that “no discharge of pollutants occurs when
water, rather than being removed and then returned to a water body, simply flows from one
portion of the water body to another.” Id. at 83. Looking to the text of the CWA, the Court
reasoned that “under a common understanding of the meaning of the word ‘add,’ no pollutants
are ‘added’ to a water body when water is merely transferred between different” parts. Id. at 82;
see also ONRC Action v. U.S. Bureau of Reclamation, 798 F.3d 933, 936–38 (9th Cir. 2015)
(holding that the flow of water from a lake, through two pumping stations and man-made
straights, and into a river was not between “meaningfully distinct” bodies of water).
MSD analogizes to L.A. County and Miccosukee. The flow of Fishpool Creek into
Vulcan Quarry and then back into Fishpool Creek, it argues, is not a discharge because the creek
and the quarry are not meaningfully distinct bodies of water. We agree.
Start with the Corps’ original flood-control plan, which explained that the diversion
channel would turn Vulcan Quarry into a “detention basin” for Fishpool Creek. (R 11-2, PageID
161.) This system, the Corps made clear, would “basically [] rechannel[]” Fishpool creek into
the quarry and redirect “70% of annual runoff in the Pond Creek Basin.” (Id. at 169–70.) Also
consider the Corps’ recent jurisdictional-determination letter, which South Side requested and
then cited in its notice and complaint. In the letter, the Corps concludes that Vulcan Quarry is an
“impoundment of relatively permanent water (Fishpool Creek).” (Id.)
Together, the Corps’ original plan and its recent letter show that the waters of Fishpool
Creek and Vulcan Quarry are part of the same body of water. Vulcan Quarry, after all, is a
permanent impoundment of the creek. “Polluted water from one part of a water body”—
Fishpool Creek—flows into “another part of the same body”—Vulcan Quarry—and then back
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into Fishpool Creek again. See L.A. Cnty. Flood Control, 568 U.S. at 83. Because “no
pollutants are added to a water body when water is merely transferred between different parts,”
Fishpool Creek does not “discharge” water into Vulcan Quarry. Id. at 82 (internal quotation
marks omitted). Instead, Fishpool Creek moves from its stream bed, into its detention basin, and
then back to the creek. The waters flowing into Fishpool Creek, in other words, are not
meaningfully distinct from the waters sitting in Vulcan Quarry. Without meaningfully distinct
waters, there is no discharge under the CWA. And without a discharge, MSD doesn’t need a
KPDES permit to rechannel Fishpool Creek into Vulcan Quarry.
Water Transfer. Assume for the sake of argument that Vulcan Quarry and Fishpool
Creek are separate bodies of water. Even then, MSD still would not need a KPDES permit under
the EPA’s Water Transfer Rule.
A “water transfer” is an “activity that conveys or connects waters of the United States
without subjecting the transferred water to intervening industrial, municipal, or commercial use.”
40 C.F.R. § 122.3(i). Such transfers “take a variety of forms,” Catskill, 846 F.3d at 503, routing
“water through tunnels, channels, and/or natural stream[s]” for uses like “irrigation, power
generation, [and] flood control.” Water Transfer Rule, 73 Fed. Reg. at 33,698. The EPA has
long “taken a passive approach to regulating water transfers.” Catskill, 846 F.3d at 503–04. And
it formalized this policy when it adopted the Water Transfers Rule in 2008. That rule exempts
water transfers from the NPDES permitting system. See 40 C.F.R. § 122.3(i).
The EPA’s hands-off approach to water transfers aligns with the CWA’s emphasis on
“cooperative federalism.” Catskill, 846 F.3d at 502. Remember that the CWA preserves states’
“primary responsibilities and rights” to “allocate quantities of water within [their] jurisdiction.”
33 U.S.C. § 1251(g). In line with this authority, almost every state with NPDES permitting
authority likewise exempts water transfers. Water Transfer Rule, 73 Fed. Reg. at 33,699;
see also Catskill, 846 F.3d at 504 n.12 (noting Pennsylvania is the only NPDES permitting
authority that regularly issues NPDES permits for water transfers).
The Fishpool Creek diversion channel falls within the Water Transfer Rule. The short
channel and spillway that connect Fishpool Creek and Vulcan Quarry “convey[] . . . waters of
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the United States.” 40 C.F.R. § 122.3(i). And those waters are not subject to any “intervening
industrial, municipal, or commercial use.” Id. The diversion channel, in other words, is the kind
of water transfer or allocation generally exempt from the EPA’s permitting system. That the
water might contain pollutants or flow between potentially distinct bodies of water makes no
difference. Because the diversion channel comes with the EPA’s water-transfer exclusion, MSD
does not require a permit to use Vulcan Quarry as a detention basin.
***
South Side’s notice claimed MSD violated the CWA when it diverted Fishpool Creek
“without [a] permit.” (R. 1-1, PageID 44.) But South Side’s notice was wrong. MSD did not
need a KPDES permit when it first built the channel between Fishpool Creek and Vulcan Quarry,
and it doesn’t need one now. The waters of Fishpool Creek and Vulcan Quarry are not
meaningfully distinct. And the diversion channel connecting the two is the kind of water transfer
that’s exempt from the permitting process anyway. So like the other bases of South Side’s CWA
suit, the allegation that MSD lacked a KPDES permit also misses the notice mark.
IV.
For these reasons, we affirm the district court’s judgment.