A federal district court recently denied an egg farm’s motion to dismiss a lawsuit alleging that neighbors were damaged by the flow of polluted wastewater coming from the egg farm onto their properties. Specifically, the plaintiff neighbors allege that the egg farm violated the Clean Water Act (CWA) by allowing waste and water runoff containing pollutants to run across their property and into a creek recognized as “waters of the United States.” The CWA citizen suit also includes state allegations of nuisance, negligence, and trespass and seeks injunctive and monetary relief. The egg farmers moved to dismiss, claiming that there was no ongoing violation of the CWA and that the California Regional Water Quality Control Board’s (RWQCB) grant of a conditional waiver for discharges from an animal operation demonstrated that there was no CWA violation.
The court found that the plaintiffs provided sufficient allegations of a pattern of noncompliance under the CWA to avoid the motion to dismiss. In seeking to have the case dismissed as moot, the egg farmers had a “heavy burden” to show the alleged behavior would not happen again. The egg farmers submitted evidence of the RWQCB application stating that manure generated on the property was stored on a tarp, covered if precipitation was forecasted, and disposed of every two weeks. Additionally, the egg farmers claimed that the grant of the waiver demonstrated that there was no CWA violation. The court found that the waiver, as a public record, was a proper subject of judicial notice, but because the parties disagreed over the facts of the document, the egg farmers did not meet their burden to show “the allegedly wrongful behavior could not reasonably be expected to recur.” Because the court denied the motion to dismiss the CWA claim for mootness, the court also retained jurisdiction of the state claims.
Farrar_v._Fluegge_Egg_Ranch_3, Inc., 2020 WL 7869455 (S.D. Cal. Dec. 31, 2020).