Affholterv.Franklin County Water District

United States District Court, E.D. CaliforniaJul 24, 2007
1:07-cv-0388 OWW DLB (E.D. Cal. Jul. 24, 2007)

1:07-cv-0388 OWW DLB.

July 24, 2007


SCHEDULING CONFERENCE ORDER


OLIVER WANGER, District Judge

I. Date of Scheduling Conference.

July 13, 2007.

II. Appearances Of Counsel.

Marderosian, Runyon, Cercone, Lehman Armo by Michael G. Marderosian, Esq., Bret L. Runyon, Esq., Michael E. Lehman, Esq., Charles A. Leath, Esq., and Shernoff, Bidart Darras by Michael J. Bidart, Esq., appeared on behalf of all Plaintiffs.

Lewis, Brisbois, Bisgaard Smith by Joseph A. Salazar, Jr., Esq., appeared on behalf of Defendant Franklin County Water District.

Jacobson, Hansen, Najarian McQuillan by Leith B. Hansen, Esq., appeared on behalf of Defendant AA A Associates.

LaMore, Brazier, Riddle Giampaoli by Jeffrey F. Oneal, Esq., and Greenfield-Hardy by Robert H. Greenfield, Esq., appeared on behalf of Defendant Merced Irrigation District and Merced Irrigation District No. 1.

Allen, Proietti Fagalde by Terry L. Allen, Esq., and Greben Associates by Jan Adam Greben, Esq., appeared on behalf of Defendant County of Merced.

Myers Mayfield by Gregory L. Myers, Esq., appeared on behalf of Defendant City of Merced.

McCormick, Barstow, Sheppard, Wayte Carruth by Stephen E. Carroll, Esq., appeared on behalf of Defendant Ranchwood Homes Corp.

III. Summary of Pleadings.

Plaintiffs' Summary

1. Plaintiffs in this action own or reside in homes generally located in four areas described within the Complaint as follows: "Beachwood Plaintiffs" who own real property and/or resided in Merced County, generally in an area bounded by Ashby Road to the south, Beachwood Avenue to the west, the El Capital Canal to the east and Coronado Avenue to the north; the "Thornton/Lopes Plaintiffs" who own real property and/or reside or resided in Merced County, generally in an area bounded by Thornton Road to the west, Lopes to the south, Highway 140 to the north and Massasso Street to the east; the "Dairy plaintiffs" who own real property and/or reside or resided on Franklin Road in Merced County, generally between Highway 99 and the Franklin Road Bridge; and the "Yosemite plaintiffs" who own real property and/or reside or resided in Merced County, generally in an area bounded by Kirby Road to the west, Black Rascal Creek to the north, a raised irrigation lateral to the south and Fairfield Channel to the east. Unless otherwise specifically described, these Plaintiff groups shall be referred to collectively throughout the Scheduling Conference Statement as "the Plaintiffs."

2. Plaintiffs' First Amended Complaint ("FAC") contains citizen suit claims arising out of violations of the Clean Water Act by all Defendants except Ranchwood Homes. Plaintiffs FAC also includes related state law claims for Inverse Condemnation under Article 1, Section 19 of the Constitution of the State of California, Negligent Maintenance, Dangerous Condition of Public Property, Unreasonable Food Barrier and Nuisance.

3. Defendants' Clean Water Act violations generally fall within two categories — those involving the actions of the defendants just before, during and after a flooding event occurring in April of 2006, and longstanding violations of the Clean Water Act by defendants some of which have been occurring since the inception of the Act in 1970. These violations have resulted in and will continue to result in the contamination of the specific waterways at issue in this action and contamination of the soil and water in and around Plaintiffs' properties. The violations of the Clean Water Act by Defendants have been both intentional and unintentional.

4. Plaintiffs related state law claims generally fall into two broad categories — those arising out of the biological and/or chemical contamination in and around Plaintiffs' properties resulting from Defendants' Clean Water Act violations and those arising from a flooding event in April of 2006. As to the flood related claims, Plaintiffs contend that the actions of Defendants, including but not limited to the importation of storm and/or drainage water from other areas of Merced County; the placement of certain public facilities, roads, canals and/or other structures at or near Plaintiffs' properties which directed flood waters onto the Plaintiffs' property and/or prevented the natural flow of flood waters away from Plaintiffs' property, were substantial factors in causing flooding to Plaintiffs' properties.

5. Plaintiffs contend that as a result of the actions of the Defendants, they have suffered and will continue to suffer, personal injuries and emotional distress resulting from the flooding event and exposure to toxins. Plaintiffs further contend they have suffered damage to their real and personal property including the loss of value to their real property.

6. Under the Clean Water Act claims Plaintiffs seek declaratory and injunctive relief as well as the payment of civil penalties and reasonable attorneys fees and costs as provided under 33 U.S.C. § 1365(d). Under Plaintiffs' related state claims, damages are sought for personal injury, personal property damage, real property loss (including stigma damages) and special damages, including wage loss, loss of past and future income, loss of rental income, business interruption losses, medical and related expenses, medical monitoring costs, cleanup costs and relocation expenses as well as recovery of attorneys fees and costs pursuant to California Code of Civil Procedure § 1036.

Defendants' Summary

1. Defendant FCWD is a public entity formed for the purpose of operating a wastewater collection and treatment facility. It is located north of the City of Merced and serves numerous households in the Beachwood area. It operates in compliance with a WDR Order issued by the California Regional Water Control Board. FCWD contends that to the extent there may be bacteria in and/or around Plaintiffs' property, it is naturally occurring and its mere presence is not the result of some act of omission by FCWD.

2. It is the contention of the City of Merced, MID and MIDD1 that each operates its waste water treatment facility and its collection system in accordance with its NPDES permit and that in the event that it violates the permit, it reports the matter and abides by corrections and mitigation as dictated by the RWQCB.

3. It is the contention of the City of Merced, FCWD, MID and MIDD1 that its handling of the flood which occurred in April 2006, was reasonable and did not result in any damage to any of the Plaintiffs caused by either flood waters or alleged contamination from those waters.

4. It is the contention of the City of Merced, FCWD, AA A Associates, Inc., MID and MIDD1 that they have not caused any damage to any of the Plaintiffs for any alleged contamination of ground water or surface water at or near their residences or businesses.

5. It is the contention of the City of Merced, FCWD, MID and MIDD1 that there is nothing which it has done which would lead to a "taking" as defined by Article 1, Section 19 of the Constitution of the State of California.

6. It is the contention of the City of Merced, FCWD, AA A Associates, Inc., MID and MIDD1 that the Plaintiffs have not suffered any damages as a result of any contamination and that they have failed to mitigate damages sustained by them as a result of flooding which occurred in April, 2006.

7. It is the contention of the City of Merced, FCWD, AA A Associates, Inc., MID and MIDD1 that the Plaintiffs who suffered damage as the result of flooding that occurred in April, 2006, knew or should have known of the likelihood of such flooding and, nonetheless, accepted the risk associated with such flooding.

8. It is the contention of the City of Merced, FCWD, AA A Associates, Inc., MID and MIDD1 that the Plaintiffs and each of them failed to mitigate any damages that they claim to have suffered.

9. It is the contention of the City of Merced, FCWD, AA A Associates, Inc., MID and MIDD1 that the actions of the Plaintiffs and each of them contributed to any damages suffered by them.

10. It is the contention of the City of Merced, FCWD, MID and MIDD1 that it is immune from prosecution of all state claims pursuant to Government Code §§ 835.4, 820.2, 830.6 and 831.2.

11. It is the contention of City of Merced, FCWD, MID and MIDD1 that the Plaintiffs and each of them are barred by the statute of limitations as set forth in the California Code of Civil Procedure § 338(j) and 28 U.S.C. § 2462.

12. It is the contention of AA A Associates, Inc., that the Plaintiffs and each of them are barred by the statute of limitations as set forth in the California Code of Civil Procedure §§ 338(a)(b) and (c) and 28 U.S.C. § 2462.

13. It is the contention of the City of Merced, FCWD, MID and MIDD1 that some of the Plaintiffs' actions are barred as a result of their failure to file the appropriate claim as required by Government Code §§ 900 and 901, et seq.

14. It is the contention of the AA A Associates, Inc., that the Plaintiffs do not have standing to bring an action under the Clean Water Act.

15. It is the contention of AA A Associates, Inc., that some of the Plaintiffs do not have standing to bring suit, to the extent that they have assigned their claims to their insurers.

16. It is the contention of the City of Merced, FCWD, MID and MIDD1 that the Plaintiffs do not have standing to bring an action under the Clean Water Act.

17. It is the contention of the City of Merced, FCWD, MID and MIDD1 that some of the Plaintiffs have entered into a flood easement which prevents them from pursuing an action for damages which they claim to have suffered as the result of any flooding that they may have experienced.

18. It is the contention of the City of Merced, FCWD, MID and MIDD1 that claims which have been brought by the Plaintiffs for equitable relief are barred by the doctrines of laches and unclean hands.

19. It is the contention of AA A Associates, Inc., that some of the claims which have been brought by the Plaintiffs for equitable relief are barred by the doctrines of waiver, estoppel and moving to the nuisance.

20. It is the contention of the City of Merced, FCWD, MID and MIDD1 that the Plaintiffs' claims are barred because they have failed to exhaust their administrative remedies.

21. It is the contention that the City of Merced, FCWD, AA A Associates, Inc., MID and MIDD1, that at all times, they acted in good faith.

22. It is the contention of AA A Associates, Inc., that they were not engaged in any activity in Merced requiring a PNDES permit.

23. It is the contention of those Defendants that own or operate a Publicly Owned Treatment Works ("POTW") that to the extent there was any excursion from its operating permit that the Defendants are immune or otherwise not subject to liability under the defenses of "upset," "interference" and/or "permit as a shield" defenses.

IV. Orders Re Amendments To Pleadings.

1. Plaintiffs agree that they shall file their Amended Complaint to add additional claimants, approximately 1,200 individuals, and to name additional parties, on or before September 13, 2007.

2. All parties agree that the Amended Complaint can be filed on or before September 13, 2007, without the necessity of a motion or hearing.

3. Plaintiffs will be amending their Complaint to include claims based upon environmental contamination resulting from the Baltimore Air Coil Facility in Merced. Defendants have been previously notified of the intention to file suit via statutory notice letters. Upon expiration of the statutory waiting periods, Plaintiffs will amend their Complaint accordingly. Plaintiffs are further considering amendments related to the filing of citizen actions for discrimination pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343 as well as additional RCRA claims against the current Defendants. All of the currently contemplated amendments, if pursued, will be made within the next 60 days. At this juncture, there is no proposed final deadline for amendments to the pleadings.

4. In order to efficiently handle the anticipated mandatory cross claims and counter claims, Defendants request the Court make the following Order:

a. In the interests of judicial economy, all present and future cross-claims and counterclaims for which there is not a responsive pleading on file in this Court are hereby deemed answered and denied. In addition to the foregoing, all parties are deemed to have pled all potential affirmative defenses in response to all present and future cross-claims and counterclaims.
b. All Defendant parties are deemed to have filed cross claims or counterclaims, as the circumstance warrants, against all other parties stating claims for: (a) contribution under section 1432 of the California Civil Code, (b) for equitable indemnity, and (c) for declaratory relief under the Federal Declaratory Relief Act, 28 U.S.C.
c. If any party in Paragraph 2.b chooses to bring an additional claim for relief other than those listed above in paragraph 2.b, that party shall file and serve the appropriate pleading in accordance with the Federal Rules of Civil Procedure. Any such party may, by notice to the Court and all parties, waive the provisions of paragraphs 2.a and 2.b.
d. To the extent Plaintiffs amend this First Amended Complaint, the Defendants shall meet and confer regarding a stipulated list of affirmative defenses to be added to those in paragraph 2.b and do so by providing notice to the Court and all parties. Barring such consensus between the Defendants, they are ordered to amend their cross claims and/or counterclaims pursuant to the Federal Rules of Civil Procedure.

5. The parties agree that counterclaims and cross-claims shall be filed in accordance with the Federal Rules of Civil Procedure. Third-Party Complaints shall be filed on or before April 1, 2008.

6. The parties further agree that Plaintiffs shall have to and including April 1, 2008, to add parties without the necessity of a Rule 15 motion.

V. Factual Summary.

A. Admitted Facts Which Are Deemed Proven Without Further Proceedings.

Plaintiffs' List
1. FCWD is a public entity.
2. Merced Irrigation is a public entity.
3. Merced Irrigation District, Drainage District No. 1 is a public entity.
4. The City of Merced is a governmental entity.
5. The County of Merced is a governmental entity.
6. Ranchwood Homes Corp. is a California corporation authorized to do business and doing business in the County of Merced.
7. AA A Associates, Inc. is a private corporation authorized to do business and doing business in the County of Merced.
8. The flooding event which is referenced in Plaintiffs' First Amended Complaint occurred in Merced, California on April 4, 2006.
9. The FCWD facility does not operate under an NPDES Permit.
10. The FCWD facility is approximately 1.5 miles northwest of the City of Merced in Sections 14 and 23, T7S, 413E, MDP and M.
11. WDR Order No. 89-171 is the only waste permit that regulates the FCWD facility and its discharge of 0.6 million gallons per day (MGD) of undisinfected treated waste water.
12. The FCWD facility includes head works in a concrete lined aeration basin with two aerators.
13. Black Rascal Creek is a tributary to Bear Creek, which is a tributary to the San Joaquin River, all waters of the United States.
14. The El Capital Canal conveys irrigation water from the Merced River south of the FCWD facility with both waters flowing into Bear Creek.
15. Less than a half a mile downstream of the confluence between the El Capital Canal and Bear Creek is Crocker Dam.
16. The MID was established to provide irrigation water to the farms in the central portion of the San Joaquin Valley located around the City of Merced.
17. The MID was organized under the California Water Code in 1919.
18. The MID is comprised of five major operational enterprises, water utility, parks and recreation, hydroelectric project, electric services and storm drainage.
19. The MID distributes water through an 800 plus mile system of dirt and concrete lined channels and pipelines.
20. The MID owns, operates and maintains five recreational areas adjacent to Exchequer and McSwain Dams.
21. The Lake McSwain recreation area is located adjacent to Lake McSwain.
22. McClure Point, Barrett Cove, Horseshoe Bend and Bagby recreation areas are all located adjacent to Lake McClure.
23. A total of six boat launch facilities are available in the recreational system.
24. Over 600 camp sites are available to the public over a year round basis.
25. The MID owns, operates and maintains the new Exchequer dams, reservoirs and hydroelectric facilities.
26. The MID is authorized to act as an electric utility under the California Water Code.
27. The MID has owned and operated hydroelectric generating facilities on the Merced River since 1927.
28. Merced County's population is approximately 250,000 people.
Defendants' List
29. That on or about April, 2006, the County of Merced and its watershed experienced torrential rainfall.
30. The parties have not had sufficient time to determine whether all facts asserted by Plaintiffs to be uncontested are in fact uncontested.

B. Contested Facts.

1. Whether all illegal discharges and activities complained of in Plaintiffs' First Amended Complaint occurred in waterways which are waters of the United States or the State of California.
2. Whether the EPA and the State of California have formerly concluded that discharges by Defendants of the complained of in previous notices served upon Defendants are prohibited by law.
3. Whether the affected waterways detailed in Plaintiffs' First Amended Complaint and in the notices served upon Defendants are navigable waters of the United States within the meaning of 33 U.S.C. § 1362(7).
4. Whether Defendants FCWD, AA A Associates, Inc., Merced Irrigation District, Merced Irrigation District, Drainage District No. 1, the County of Merced or the City of Merced have violated and continue to violate the Clean Water Act by violations of the terms of their NPDES Permits, if one has been issued to the entity.
5. Whether each of the violations by Defendant FCWD, AA A Associates, Inc., Merced Irrigation District, Merced Irrigation District, Drainage District No. 1, the County of Merced or the City of Merced in excess of their NPDES Permits constitute separate actionable violations of the Clean Water Act.
6. Whether Defendants FCWD, AA A Associates, Inc., Merced Irrigation District, Merced Irrigation District, Drainage District No. 1, the County of Merced or the City of Merced will continue to violate the limits in terms of the NPDES Permits, as well as state and federal standards with respect to the discharges and releases as identified in notices to Defendants, unless appropriate civil penalties and equitable relief is granted.
7. Whether the FCWD owns, maintains and/or operates a waste water treatment, refuse and disposal facility that served the adjacent community in areas around Plaintiffs' residences.
8. Whether the FCWD facility demonstrates severe problems with the collection system, in that water, both surface and groundwater drainage is to Black Rascal Creek which parallels the southbound drain of the FCWD facility.
9. Whether the water quality control plan for the San Joaquin River basin contains water quality objectives for all waters of the basin and is being violated as sewage from the FCWD facility leaks or is otherwise discharged from the facility through leaking collection pipes, hydrologically connected ponds or inconsistent maintenance schedule.
10. Whether the FCWD has chronic pollution problems associated with, among other things, its antiquated facility and collection system, undersized capacity, old equipment and inconsistent maintenance schedule.
11. Whether the FCWD has illegally released treated sewage directly to adjacent waters of the United States, with the most recent event occurring in April or May of 2006.
12. Whether in April of 2006, a failure of a levee on the channelized portion of Black Rascal Creek caused flooding within the service area and inundated portions of the sewage collective system causing the influent flow to spike. To reduce water levels in the disposal ponds from April 14 to May 2, 2006, FCWD illegally discharged treated sewage to Black Rascal Canal.
13. Whether FCWD claimed the discharge was necessary to ensure the ponds were at a level that would allow adequate capacity for the coming year and to avoid future discharges to Black Rascal Creek. Records indicate that these illegal discharges could have been avoided.
14. Whether due to its proximity to a hydrological connection with adjacent waters, the ponds of the FCWD facility discharged directly to the waters of the United States.
15. Whether pollutants deposited by the FCWD migrate to the waters of the United States.
16. Whether FCWD has admitted that it will continue to have problems with illegal discharges in the future and that the likelihood of increases each year are due to flooding, urbanization, loss of adjacent wetlands, loss of tributaries and other hydrological factors.
17. Whether FCWD admits that direct discharges such as those that have occurred in 2006 were violations of the Clean Water Act.
18. Whether FCWD's waste water collection system is a source of unpermitted and unregulated pollution.
19. Whether the FCWD's waste water collection system suffers frequent sewer overflows which enter storm drains, ditches, creeks and other waters of the United States.
20. Whether the FCWD facility has poor documentation concerning collection system overflow events and maintenance.
21. Whether due to FCWD's collection system's poor condition, it discharges subsurface pollutants each and every day contributing to the general overall pollutants entering the ground and groundwater from their ponds.
22. Whether FCWD has no NPDES permit allowing such discharges.
23. Whether discharges by the Merced Irrigation District are a contributing factor to the illegal problems of the discharges by the FCWD.
24. Whether the Clean Water Act violations of the FCWD affect the health and enjoyment of victims who reside, work and recreate in the affected area.
25. Whether the violations of FCWD have resulted in property loss to Plaintiffs, including real and personal property.
26. Whether the Merced Irrigation District (MID) and Merced Irrigation Drainage District No. 1 (MIDD1) had been in continuous operation prior to the passage of the Clean Water Act and have been violating the Act since it was passed.
27. Whether in 2005, various recreational locations owned, operated or maintained by the MID had a combined 658,575 visitor days. Human waste, hydrocarbon pollutants, solvents, pesticides, detergents and sediment are all pollutants discharged from the lakes and the MID recreational areas to other waters of the United States, including Canal Creek, El Capital Canal and Black Rascal Creek which are downstream from the lakes.
28. Whether the MID intentionally discharges from these lakes and reservoirs to other waters. By these acts, the MID is discharging pollutants to the waters of the United States.
29. Whether changes in the movement, flow or circulation of any navigable water or groundwater, including changes caused by the construction of dams, levees, channels, causeways or flow diversion facilities create waste products which are "added" to the water by tangential processes in generating electricity. The MID has no NPDES permit for these types of discharges occurring from one water to another water of the United States.
30. Whether for more than 40 years, the MID has utilized pesticides in its 800 plus miles of canals, laterals and pipelines.
31. Whether the MID has ever had an NPDES permit for discharges related to pesticide use prior to the adoption of statewide general NPDES permit for the discharge of pesticides for aquatic weed and pest control in waters of the United States, and the general NPDES permit for discharges of aquatic pesticides to waters of the United States for vector control.
32. Whether either the MID does not have any valid aquatic pest permit or vector permit, or the MID's use and application of pesticides violates the provisions of these permits. Any NPDES permit violation is also a violation of the Clean Water Act.
33. Whether the MID has failed to implement adequate best management practices in its use of pesticides by failing to employ best available technology and best conventional technology.
34. Whether the MID's discharge of pesticide waste creates or causes conditions of nuisance and pollution.
35. Whether the discharges cause or contribute to long-term adverse impacts on beneficial uses.
36. Whether the MID's discharges adversely impact human health and the environment.
37. Whether the discharge of pesticides by the MID are non-compliant with all FIFRA label instructions, DPR and DHS Regulations, as well as any use permits issued by CACs.
38. Whether the MID has failed to minimize the extent and duration of impacts caused by the discharge of pesticide related pollutants and to demonstrate that, following completion of resource or pest management projects, the water quality of the receiving waters is equivalent to the pre-application state.
39. Whether receiving waters outside the treatment area in and around plaintiffs' residence and environment are or are not free of toxics.
40. Whether the MID discharges are causing or threatened to cause groundwater in the vicinity of Plaintiffs' residence to contain waste constituents in excess of background, groundwater quality objectives.
41. Whether the MID and MIDD1 have violated the Clean Water Act by reason of their failure to acquire an NPDES permit and for discharging pollutants into the waters of United States without an NPDES permit.
42. Whether with regard to the aquatic pest permit and vector permit, the MID and MIDD1 is in violation of those permits each and every day, since the date they filed a notice of intent and received coverage under these general NPDES permits. Each and every discharge is a separate violation of the Clean Water Act.
43. Whether violations of the MID and MIDD1 have affected the health and enjoyment of Plaintiffs who reside, work and recreate in the affected areas.
44. Whether the violations of the MID and MIDD1 have resulted in real and personal property damage sustained by Plaintiffs.
45. Whether the City of Merced owns and operates a POTW waste water collection system which collects various industrial and domestic waste. Due to either bypass or overflow, wastes are discharged to surface waters. These discharges occur both surface and subsurface.
46. Whether the City of Merced's POTW operation also alone or in combination with other sources, causes or threatens to cause degradation of area groundwater by allowing polluted waste leaving the collection system to be the positive in areas such as the areas around Plaintiffs' residences where the polluted waste is discharged into groundwater.
47. Whether the City of Merced fails to report many of these violations and fails to take corrective actions as required by its permit and RWQCB standard provisions which have been made part of Merced's permit.
48. Whether the bypass or overflow of waste to surface waters by the City of Merced is prohibited.
49. Whether the City of Merced's POTW operation alone or in combination with other sources caused or threatens to cause degradation of groundwater.
50. Whether the City of Merced fails to report violations of its permit and fails to take corrective action as required by its permit.
51. Whether the City of Merced fails to take corrective action in order to eliminate its violations of the Clean Water Act.
52. Whether the City of Merced's POTW has been in continuous operation prior to the passage of the Clean Water Act.
53. Whether much of the City of Merced's collection system predates the Clean Water Act.
54. Whether the City of Merced has been violating the Clean Water Act and POTW and were required to come into compliance with its discharge restrictions.
55. Whether bypasses or overflows from the collection to surface water, including storm drains, ditches and other flood control devices, violate the Clean Water Act.
56. Whether the City of Merced's collection system leaks subsurface to waters of the United States, including storm drain system including ditches and other control devices.
57. Whether the City of Merced's storm drain system carries these pollutants to the vicinity of Plaintiffs' residences where the pollutants discharge into groundwater or during flooding discharge overland into the residences of Plaintiffs.
58. Whether, when discharging subsurface, the City of Merced's collection system discharges these pollutants to surface waters, including the storm drains, ditches and other flood control devices where these pollutants are carried and distributed to the vicinity of Plaintiffs' residences.
59. Whether by discharging polluted water to the vicinity of Plaintiffs' residences, the City of Merced causes or threatens to cause degradation of area groundwater.
60. Whether the City of Merced fails to report all bypasses and overflows, particularly those occurring subsurface.
61. Whether the City of Merced's waste water collection treatment and disposal system provides sewage services to industry and 76,000 plus residents. Numerous significant industrial users, including users from the metal finishing and aluminum forming categories, discharge more than a million gallons per day of waste into the City of Merced's leaking collection system. Discharges include toxic metals, solvents, polyaromatic hydrocarbons (PAHs), petroleum hydrocarbon pesticides, endocrine disruptures, immune suppressants and pharmaceuticals and the like.
62. Whether the collection system for the City of Merced facility suffers from significant inflow and infiltration which may be caused by pipe misalignment, cracks, crown erosion, open joints, roots and the like. Due to the proximity of the collection system to surface waters and in particular the storm drain system, the collection system discharges the surface and subsurface flows to waters of the United States.
63. Whether the City of Merced is aware of these discharges and fails to take corrective actions.
64. Whether intentional or unintentional diversion of flow from any portion of the City of Merced's treatment facility or collection system and transport systems, including pumping facilities is a violation of the City of Merced's permit and a violation of the Clean Water Act.
65. Whether frequent sewer overflows often enter storm drains, ditches, flood control devices, creeks and other waters of the United States. The City of Merced has poor documentation concerning its collection system. The City of Merced fails to report all surface overflows and bypasses to our RWQCB.
66. Whether the City of Merced also fails to report any subsurface discharges. All of the discharges from the City of Merced facility are contributing to the general overall pollutants entering ground and groundwater in and around Plaintiffs' residences.
67. Whether the City of Merced's storm drains empty to Black Rascal Creek, Canal Creek and El Capital Canal where pollutants enter groundwater and migrate to the vicinity of Plaintiffs' residences.
68. Whether between January 1, 2002, and January 1, 2007, the City of Merced had 240 violations due to the intentional or unintentional diversion of flow from the collection and transport systems, including pumping facilities via surface flow to a water of the United States, including storm drains, ditches and flood control devices.
69. Whether between January 1, 2002, and January 1, 2007, the City of Merced had 1,500 violations due to the intentional or unintentional diversion of flow from the collection and transport systems, including pumping facilities via subsurface flow to a water of the United States, including storm drains, ditches and flood control devices.
70. Whether between January 1, 2002, and January 1, 2007, the City of Merced had 1,500 violations for causing or threatening to cause degradation of area groundwater.
71. Whether between January 1, 2002, and January 1, 2007, the City of Merced had 1,500 violations for failing to report the immediately preceding violations.
72. Whether between January 1, 2002, and January 1, 2007, the City of Merced had 1,500 violations for failure to take corrective action in order to eliminate the violations as enumerated above.
73. Whether pursuant to the Clean Water Act, the EPA and State of California have formerly concluded that violations by the City of Merced are prohibited by law.
74. Whether due directly to the violations of the City of Merced in relationship to the Clean Water Act, Plaintiffs have suffered loss of property value, damage to real property and suffered personal injuries.
75. Whether large sections of Merced County discharges pollutants to Plaintiffs' residences and land via the County's municipal separate storm sewer system (MS4s). MS4s are a conveyance or system of conveyance (including roads with drainage systems, streets, catch basins, curbs, gutters, ditches, manmade channels or storm drains) designed or used for collecting or conveying storm water which is not a combined sewer and which is not a part of a publicly owned treatment or POTW."
76. Whether the County of Merced uses its MS4s for local flood control and elimination of contaminated storm water, UST cleanup discharge, polluted process water, chlorinated water and other waste by routing polluted discharge and flood waters away from other county lands to Plaintiffs' residences and land.
77. Whether the County of Merced's activities, property and facilities convey polluted water from various locations via the County's MS2s to Canal Creek, El Capital Canal and Black Rascal Creek.
78. Whether in 2006, the County of Merced discharges caused or contributed to waters backing up and flooding Plaintiffs' property in and around the storm drainage area with various pollutants, none of which the County was authorized to discharge by any NPDES permit the County has obtained.
79. Whether the Clean Water Act, section 402(p) requires the County of Merced to develop and implement a program to reduce pollutants discharged with storm water runoff to the maximum extent practicable. This program is administered through NPDES permits. These regulations require operators of medium and large MS4s like the County's to obtain NPDES storm water permits. The County has not obtained a Phase I municipal area storm water discharge permit.
80. Whether starting from the first day the County was required to obtain a Phase I NPDES permit for storm water under the Clean Water Act, it has been in violation of the Act.
81. Whether the County of Merced discharges human waste, hydrocarbon pollutants, solvents, pesticides, detergents, phosphate fertilizers, toxic metals and sediment to its MS4s leading to Canal Creek, El Capital Canal and Black Rascal Creek.
82. Whether the County of Merced intentionally discharges from its parks, sewage collective systems, preferential pathways, fire department, utility yards, maintenance facilities, building and other sources via its MS4s.
83. Whether many of the County's discharges are not storm related, but are due to other causes such as fertilizer, runoff during maintenance operations, street cleaning, equipment cleaning and repair, pest control, weed control, water and sewage releases, construction, road repair, building maintenance, gardening and land management.
84. Whether by the above acts, the County of Merced is discharging pollutants to the waters of the United States, and the County has no NPDES permit covering these types of discharges.
85. Whether for more than 60 years, the County of Merced has utilized pesticides, including aquatic herbicides to control weeds, mosquitos and other pests in MS4s and waters of the United States.
86. Whether in addition to the pesticides themselves, pesticide products contain other chemicals such as surfactants solvents, metals and the like which all contribute to the pollutants being added to the target waters.
87. Whether the County of Merced has ever had an NPDES permit for these discharges prior to the adoption of the statewide general NPDES permit for discharge of aquatic pesticides for aquatic weed and pest control in waters of the United States (Aquatic Pest Permit) and the general NPDES permit for discharges of aquatic pesticides to surface water of the United States for vector control (Vector Permit).
88. Whether either the County does not have a currently valid aquatic pest permit or vector permit, or the County's use and application of pesticides violates the provisions of these permits.
89. Whether the County of Merced has failed to implement adequate best management practices in its use of pesticides by failing to employ the best available technology and best conventional technology.
90. Whether the County's discharge of pesticide waste creates or causes conditions of nuisance and pollution.
91. Whether the County's discharges caused or contributed to long-term adverse impacts on beneficial uses.
92. Whether the County's discharges adversely impact human health and the environment.
93. Whether the County's discharge of pesticides are non-compliant with all FIFRA label instructions, DPR and DHS Regulations, as well as any use permits issued by CACs. The County has failed to minimize the extent and duration of impacts caused by the discharge of pesticide related pollutants, and to demonstrate that following completion of resource or pest managements, the water quality of the receiving waters is equivalent to the pre-application state.
94. Whether there is evidence of the County's violations by the fact that receiving waters are not free of toxics outside the treatment area, in and around Plaintiffs' residences and environment.
95. Whether the County's discharges are causing or threatening to cause groundwater in the vicinity in Plaintiffs' residences to contain waste constituents in excess of background, groundwater quality and in excess of applicable water quality objectives. These exceedences and illegal discharges threaten the beneficial uses of surface and groundwater, pollute the land and endanger the health and safety of the residences of the area including Plaintiffs'.
96. Whether the contamination as identified above with respect to FCWD, MID, County of Merced or the City of Merced resulted from public improvements deliberately designed, constructed, repaired and maintained for the benefit of the public, for which these defendants exercise dominion and control, and whether such contamination damaged the Beachwood Plaintiffs' property resulting in a taking under Article 1, Section 19 of the Constitution of the State of California.
97. Whether on April 4, 2006, dirt embankments along El Capital Canal failed to function as intended and collapsed allowing water to escape the canal and flood the Beachwood Plaintiffs' real and personal property.
98. Whether the County of Merced designed, constructed and maintained Ashby Road located to the south of Beachwood Plaintiffs' property. Whether Ashby Road is raised above ground level without any means by which flood water might travel underneath or around the roadway, and as a result, Ashby Road obstructed the flow of flood water which had escaped the channel causing it to back up and pool on the Beachwood Plaintiffs' real and personal property.
99. Whether FCWD, MID, County of Merced and/or the City of Merced converted Black Rascal Creek from a natural waterway for use as an irrigation canal and as part of a storm drainage system, such that the quantity of water delivered to El Capital Canal in conjunction with rainfall on April 4, 2006, was such to overtop and collapse the dirt embankment allowing water to escape from the canal and flood Plaintiffs' real and personal property.
100. Whether FCWD, MID, County of Merced and/or the City of Merced failed to adequately design a channel and dirt embankments along El Capital Canal, in that it was reasonably foreseeable that irrigation water, storm drain runoff and rainfall either alone or in combination would exceed the capacity of the canal and overtop so as to flood Plaintiffs' real and personal property.
101. Whether FCWD, MID, County of Merced and/or the City of Merced deliberately constructed and designed dirt embankments on the west side of the El Capital Canal at a height substantially lower than the embankment on the opposite side or east of the canal which resulted in flood waters flowing onto Plaintiffs' real and personal property, instead of with lesser force over the property on both sides of the canal.
102. Whether the conditions described immediately above, resulted from the use of public improvements deliberately designed, constructed, repaired or maintained for benefit of the public, and were substantial factors in causing the Beachwood Plaintiffs' damages and constituted a taking under Article 1, Section 19 of the Constitution of the State of California.
103. Whether the Beachwood Plaintiffs have sustained real and personal property damage, as a result of the contamination and flooding events.
104. Whether the Beachwood Plaintiffs have sustained and will continue to sustain other economic losses due to the flooding and contamination events.
105. Whether Plaintiffs have incurred and will continue to incur attorneys fees, appraisal fees and engineering fees as a result of Defendants' taking under Article 1, Section 19 of the Constitution of the State of California.
106. Whether FCWD, MID, City of Merced and/or the County of Merced designed, constructed and maintained along Black Rascal Creek dirt embankments which deteriorated on April 4, 2006, resulting in flooding to the Dairy Plaintiffs' real and personal property.
107. Whether the Dairy Plaintiffs are located generally to the north of Black Rascal Creek, between the Creek and Franklin Road.
108. Whether FCWD, MID, City of Merced and/or the County of Merced deliberately designed, constructed and maintained an embankment on the opposite side of the creek such that it was substantially higher than the embankment adjacent to and on the Dairy Plaintiffs' side of the creek, resulting in flood waters flowing with dangerous momentum on Dairy Plaintiffs' property, instead of with lesser force over property on both sides of the creek.
109. Whether the City of Merced and/or the County of Merced designed, constructed and maintained Franklin Road in such a way as it was raised above ground level without a means by which flood water may travel underneath or around the roadway. As a result, Franklin Road obstructed the flow of water and caused it to pond on Plaintiffs' real property. The condition as described as to Black Rascal Creek constituted public improvements deliberately designed and were substantial factors in causing the Dairy Plaintiffs' injuries which constituted taking under Article 1, Section 19 of the Constitution of the State of California.
110. Whether the Dairy Plaintiffs have sustained real and personal property damage, as a result of the contamination and flooding events.
111. Whether the Dairy Plaintiffs have sustained and will continue to sustain other economic losses due to the flooding and contamination events.
112. Whether Plaintiffs have incurred and will continue to incur attorneys fees, appraisal fees and engineering fees as a result of Defendants taking under Article 1, Section 19 of the Constitution of the State of California.
113. Whether the Clean Water Act violations of FCWD, MID, County of Merced and/or City of Merced resulted in property loss and constituted taking under Article 1, Section 19 of the Constitution of the State of California.
114. Whether FCWD, MID, County of Merced and/or the City of Merced deliberately designed, constructed and maintained the embankments along El Capital Canal which diverted the natural flow of water that it escaped Bear Creek to the Thornton/Lopes Plaintiffs' real property.
115. Whether a raised earthen berm deliberately designed, constructed and maintained by the County of Merced ran parallel to Lopes Avenue, dammed or obstructed the flow of waters and caused it to pond on Plaintiffs' real property.
116. Whether FCWD, MID, County of Merced and/or the City of Merced converted Bear Creek from a natural waterway for use as an irrigation canal and part of a storm drain system, such that the quantity of water delivered to Bear Creek in conjunction with the rainfall on April 4, 2006, was such to overtop and collapse a portion of the dirt embankment allowing flooding to the Thornton/Lopes Plaintiffs' real and personal property.
117. Whether the real and personal property damage that was sustained by the Thornton/Lopes Plaintiffs constituted a taking under Article 1, Section 19 of the Constitution of the State of California.
118. Whether the Thornton/Lopes Plaintiffs have sustained real and personal property damage, as a result of the contamination and flooding events.
119. Whether the Thornton/Lopes Plaintiffs have sustained and will continue to sustain other economic losses due to the flooding and contamination events.
120. Whether Plaintiffs have incurred and will continue to incur attorneys fees, appraisal fees and engineering fees as a result of Defendants taking under Article 1, Section 19 of the Constitution of the State of California.
121. Whether the MID, County of Merced and/or the City of Merced deliberately designed, constructed and maintained along the Fairfield Channel dirt embankments which failed to function as intended and collapsed allowing water to escape the Fairfield Channel and flood the Yosemite Plaintiffs' real and personal property.
122. Whether the same Defendants deliberately designed, constructed and maintained a raised embankment for a lateral irrigation canal adjacent and behind the south of the Yosemite Plaintiffs' property which served as a dam and obstructed flood water and caused it to pond on the Yosemite Plaintiffs' property.
123. Whether the same Defendants designed, constructed and maintained Kirby Road which was raised above ground level without a means by which flood water might travel underneath or around the roadway. As a result, Kirby Road obstructed the flow of water and caused it to pond on the Yosemite Plaintiffs' real property.
124. Whether Fairfield Channel was part of an irrigation system, such that the quantity of water delivered to the Fairfield Channel in conjunction with the rainfall on April 4, 2006, was such to overtop and collapse a portion of the dirt embankment allowing water to flood the Fairfield Channel and flood the Yosemite Plaintiffs' property.
125. Whether the MID, County of Merced and/or the City of Merced failed to adequately design the channel and the dirt embankments along Fairfield Channel resulting in its collapse.
126. Whether the conduct and/or public structures of the MID, County of Merced and City of Merced resulting in personal and real property damage to Yosemite Plaintiffs and constituted taking under Article 1, Section 19 of the Constitution of the State of California.
127. Whether the Yosemite Plaintiffs have sustained real and personal property damage, as a result of the contamination and flooding events.
128. Whether the Yosemite Plaintiffs have sustained and will continue to sustain other economic losses due to the flooding and contamination events.
129. Whether Plaintiffs have incurred and will continue to incur attorneys fees, appraisal fees and engineering fees as a result of Defendants taking under Article 1, Section 19 of the Constitution of the State of California.
130. Whether each of the Defendants failed to exercise due care in the maintenance of the public improvements previously identified so as to cause portions of the embankments to collapse and/or the water to otherwise overtop the embankments.
131. Whether Defendants and each of them, since 1970 and continuing to the present, failed to maintain waste water treatment refuse and disposal facilities including sewage collection and conveyance systems, and rainwater or storm drainage systems, such as to cause contamination to soil, groundwater and surface water in and around Plaintiffs' real property.
132. Whether the conditions of the public improvements previously identified constituted a dangerous condition of public property.
133. Whether Defendant Ranchwood Homes developed tract homes to the north of the Beachwood Plaintiffs and in conjunction therewith designed and constructed a raised earthen berm or barrier that in the course of the flood of April 4, 2006, obstructed and blocked the flood waters so as to cause it to back up and pond on property of the Beachwood Plaintiffs.
134. Whether Ranchwood Homes acted unreasonably in the design and construction of the earthen berm, including failing to provide a means by which to divert the water away from Plaintiffs' property.
135. Whether all of the conditions of public and private property as described above constituted a nuisance depriving Plaintiffs of the use and enjoyment of their property.
136. Whether Plaintiffs are entitled to a declaration that Defendants have violated and are in violation of the Clean Water Act.
137. Whether the Plaintiffs are entitled to a declaration as to the rights and liabilities of Plaintiffs and Defendants.
138. Whether injunction should be issued ordering Defendants to operate in compliance with the Clean Water Act, and if applicable, the effluent and receiving water limitations in its NPDES permits as well as state and federal standards of enforceable under the Clean Water Act.
139. Whether the court should order Defendants to pay civil penalties per violation per day for its violations of the Clean Water Act.
140. Whether the Court should order Defendants to pay Plaintiffs' reasonable attorneys fees and costs, including expert witness fees as provided by 33 U.S.C. § 1365(d).
141. Whether Plaintiffs should be awarded general damages according to proof.
142. Whether Plaintiffs should be awarded special damages, including but not limited to real and personal property damages, decreased market value, stigma damages, loss of habitability, cost of repair, loss of use and enjoyment of property, wage loss, loss of past and future income, loss of rental income, business interruption losses, medical and related expenses, medical monitoring costs, cleanup costs and relocation expenses.
143. Whether Plaintiffs are entitled to interest on damages.
144. Whether Plaintiffs are entitled to attorneys fees and costs of suit incurred, including engineering and appraisal fees pursuant to California Code of Civil Procedure § 1036.
Defendants' List
145. Whether any act or omission by any of the Defendants was the cause of the flooding in the Beachwood area.
146. Whether any act or omission by any of the Defendants was the cause of Plaintiffs' claimed damages.
147. Whether there is any "contamination" at the Plaintiffs' properties and, if so, whether it is traceable to Defendant(s) and/or Plaintiffs.
148. Whether any claimed "contaminant" qualifies as a "pollutant" under the Clean Water Act.
149. Whether any of the Plaintiffs have actually suffered any physical injury as a result of any act or omission of Defendant(s).
150. Whether any Defendant owns and/or operates a "point source" as defined by the Clean Water Act.
151. That the County of Merced has in the past and continues to comply with all aspects of the Clean Water Act (CWA).
152. That the County of Merced has taken all necessary steps and procedures to obtain the appropriate NPDES permit(s).
153. That the County of Merced has not discharged any pollutant in violation of the CWA.
154. That the County of Merced has not violated any provisions of regulations or standard of any permit including a NPDES permit.
155. That the County of Merced has not discharged any pollutant from any "point source" into waters of the United States.
156. That the County of Merced knows of no "point source" from which there was any discharge by the County.
157. That the County of Merced has at all times taken all steps to obtain and has made all necessary permits for use of aquatic or vector pesticides or herbicides.
158. That the County of Merced knows of no facility owned or operated by the County which has been identified by the EPA or the State or any one else as a "point source."
159. That the County of Merced has fully complied with all requirements of the R.W.Q.C.B.
160. That the County of Merced has designed and followed "best management practices" and has taken all steps necessary to design a "storm water management program."
161. That the County of Merced has not discharged from any "point source" to the vicinity of the Beachwood Plaintiffs.
162. That the County of Merced does not have and it does not control any public improvement, public facility, sewer, water storm drainage or system or a public utility in the area impacted by the April 4, 2006, flood water or in the vicinity of the Beachwood Plaintiffs.
163. That the County of Merced does not have and has not controlled the design, construction or maintenance of the El Capital Canal, Black Rascal Creek, Bear Creek Canal, Fairfield Canal or lateral.
164. That the County of Merced has not designed, constructed or converted any natural water way into an irrigation system or storm water system including Black Rascal Creek, El Capital Canal, Bear Creek or Cana [sic] Creek.
165. That the County of Merced has not discharged any water or pollutant in the vicinity of the Soares Dairy Plaintiffs, whether or not from a "point source."
166. That the County of Merced has at all times, not operated its wastewater treatment facility and its collection system in accordance with its permits and does not and has not operated said facility or systems in the vicinity of the Plaintiffs or in the vicinity of any area of the April 4, 2006, flood waters.
167. That the County of Merced's handling of the waters which occurred from the flood that occurred in April of 2006, was reasonable and did not result in any damage to any of the Plaintiffs including by other flood waters or alleged contamination from those waters.
168. That the County of Merced has not caused any damage to any of the Plaintiffs from any alleged contamination of groundwater or surface water at or near Plaintiffs' residences or businesses.
169. That the County of Merced has done nothing which would lead to a "taking" as defined by Article 1, Section 19 of the Constitution of the State of California.
170. The County of Merced contends that the Plaintiffs have not suffered any damages as a result of any contamination and that they have failed to mitigate damages sustained by them as a result of flooding which occurred in April 2006.
171. The County of Merced contends that the Plaintiffs who suffered damage, if any, as a result of flooding that occurred in April 2006, were fully aware of the likelihood of such flooding and, nonetheless, accepted the risk associated with such flooding.
172. The County of Merced contends that the Plaintiffs and each of them failed to mitigate any damages that they claim to have suffered.
173. The County of Merced contends that the actions of Plaintiffs and each of them, contribute to any damage suffered by them.
174. The County of Merced is immune from prosecution of all State claims pursuant to Government Code Sections 835.4, 820.2, 830.6 and 831.2.
175. The County of Merced contends that the Plaintiffs and each of them are barred by the statutes of limitations set forth in Government Code Section 338(j) and 28 U.S.C. § 2462.
176. The County of Merced contends that some of the Plaintiffs' actions are barred as a result of their failure to file the appropriate claim as required by Government Code Sections 900 and 901, et seq.
177. The County of Merced contends that Plaintiffs do not have standing to bring an action under the Clean Water Act.
178. The County of Merced contends that some of the Plaintiffs have entered into a flood easement which prevents them from pursuing an action for damages which they claim to have suffered as a result of any flooding which may have occurred.
179. The County of Merced contends that claims which have been brought by the Plaintiffs for Equitable Relief and are barred by the doctrines of laches and unclean hands.
180. The County of Merced contends that the Plaintiffs' claims are barred because they have failed to exhaust their administrative remedies.
181. The County of Merced at all times acted in good faith.
182. The County of Merced is not and has not discharged any pollutants from any MS4s or from any "point source" whether storm drainage or not.
183. The County of Merced complied with all NPDES Phase I permit requirements.
184. Whether Ranchwood Homes developed tract homes to the north of the Beachwood Plaintiffs.
185. Whether Ranchwood Homes designed and constructed a raised earthen berm or barrier that in the course of the flood of April 4, 2006, obstructed and blocked the flood water so as to cause it to back up and pond on the property of the Beachwood Plaintiffs.
186. Whether Ranchwood Homes acted unreasonably in the design and construction of the alleged earthen berm or barrier including, but not limited to, a failure to provide a means by which to divert the water away from the Beachwood Plaintiffs' property.
187. Whether a raised earthen berm or barrier designed or constructed by Ranchwood Homes was the legal cause of the injuries alleged by the Beachwood Plaintiffs.
188. Whether Plaintiffs' real and personal property have sustained and will continue to sustain damages, including, but not limited to damage, to structures, foundations, walls and personal contents resulting in decreased market value, stigma damage and loss of habitability of their residences as a result of an unreasonable flood barrier for which Ranchwood Homes is legally responsible.
189. Whether the Beachwood Plaintiffs have further incurred and will continue to incur costs of repair for this damage.
190. Whether an unreasonable flood barrier designed or constructed by Ranchwood Homes legally caused the Beachwood Plaintiffs' real property to flood and has and will continue to be contaminated with pollutants, such that Plaintiffs have been prevented from use and enjoyment of their properties.
191. Whether as a legal cause of the alleged unreasonable flood barrier as alleged in the complaint, Plaintiffs have suffered and will continue to suffer economic losses, including wage loss, loss of past and future income, loss of rental income, relocation expenses, clean-up costs, and business losses.
192. Whether as a legal cause of the alleged unreasonable flood barrier as identified in the complaint, Plaintiffs have suffered and will continue to suffer personal injuries related to the flooding as previously alleged.
193. Whether the Beachwood Plaintiffs have incurred and will continue to incur medical expenses, including medical monitoring costs.
194. Whether as a legal result of the alleged unreasonable flood barrier as identified in the complaint, Plaintiffs have suffered and will continue to suffer emotional distress, anxiety, fear of illness, depression and other psychological, emotional and mental injuries resulting from the contamination and flooding as alleged above.
195. Whether Ranchwood Homes, through its employees, agents and contractors, since 1970 and continuing thereafter, have owned operated, constructed, managed, maintained, supervised and controlled the sewage and storm drain system and sewage treatment plants identified in Plaintiffs' complaint.
196. Whether Ranchwood Homes legally caused the discharge of pollutants into surface and subsurface waters, the close proximity of sewage treatment plants to the irrigation system, the inability to completely segregate the storm drain and sewage systems and the permeability of the dirt embankments along the irrigation system contaminated the ground water and soil in the vicinity of the Plaintiffs.
197. Whether Plaintiffs were unaware of this ongoing contamination alleged in their complaint until October of 2006.
198. Whether Ranchwood Homes, through its employees, agents and contractors, whose identities are presently unknown, owned, operated, constructed, managed, maintained, supervised, and controlled the roadways, levees, irrigation channels, water levels of adjoining channels, laterals, creeks of the irrigation system, raised berms, and/or raised flood barriers as alleged in Plaintiffs' complaint, so as to cause water to escape from the irrigation canals, flood Plaintiffs' property and pond on it.
199. Whether the alleged ownership, operation, construction, management, maintenance, supervision, and control of the storm and sewage treatment systems, sewage treatment plants, roadways, levees, irrigation channel, water levels of adjoining channels, laterals and creeks of the irrigation system, contaminated the ground water in the vicinity of Plaintiffs, flooded Plaintiffs' property, and allowed water to pond on it, constituted a nuisance under California Civil Code Section 3479 in that it deprived Plaintiffs of the quiet enjoyment of their property.
200. Whether Plaintiffs' real and personal property sustained and will continue to sustain damages, including, but not limited to, damage to structures, foundations, walls and personal contents resulting in decreased market value, stigma damage and loss of habitability of their residences.
201. Whether Plaintiffs have incurred and will continue to incur costs of repair for their property.
202. Whether as a legal cause of the alleged nuisance, Plaintiffs' real property was flooded and has and will continue to be contaminated with pollutants, such that Plaintiffs have been prevented from use and enjoyment of their properties to their damage.
203. Whether as a legal result of the alleged nuisance, Plaintiffs have suffered and will continue to suffer economic losses, including, but not limited to, wage loss, loss of past and future income, loss of rental income, relocation expenses, clean-up costs and business losses.
204. Whether as a legal cause of the alleged nuisance, Plaintiffs have suffered and will continue to suffer personal injuries related to contamination and flooding as previously alleged.
205. Whether Plaintiffs have incurred and will continue to incur medical expenses.
206. Whether as a legal result of the alleged nuisance, Plaintiffs have suffered and will continue to suffer emotional distress, anxiety, fear of illness, depression and other psychological and emotional injuries resulting from the contamination and flooding.
207. Plaintiffs disagree with Defendants' statement of undisputed facts.

VI. Legal Issues.

A. Uncontested.

1. Jurisdiction exists under 28 U.S.C. § 1331 and 42 U.S.C. § 1983 and 28 U.S.C. § 1343. Jurisdiction is also invoked under 28 U.S.C. § 1367 as supplemental claims are asserted under California law.
2. Venue is proper under 28 U.S.C. § 1391 and the provisions of 28 U.S.C. § 1343.

B. Contested.

1. Whether the Federal Clean Water Act applies to non-surface waters.
2. The nature and extent that a natural act (substantial rainfall) will shield Defendants from Plaintiffs' claims.
3. The extent to which various Plaintiffs' claims are barred by the appropriate statutes of limitations, claims filing requirements and standing.
4. Whether Defendants FCWD, AA A Associates, Inc., Merced Irrigation District, Merced Irrigation District, Drainage District No. 1, the County of Merced or the City of Merced have violated and continue to violate the Clean Water Act by violations of the terms of their NPDES Permits, if one has been issued to the entity.
5. Whether Defendants FCWD, AA A Associates, Inc., Merced Irrigation District, Merced Irrigation District, Drainage District No. 1, the County of Merced or the City of Merced have violated and continue to violate the Clean Water Act by discharging pollutants to waters of the United States without a NPDES permit authorizing such discharges.
6. Whether each of the violations by Defendant FCWD, AA A Associates, Inc., Merced Irrigation District, Merced Irrigation District, Drainage District No. 1, the County of Merced or the City of Merced in excess of their NPDES Permits constitute separate actionable violations of the Clean Water Act.
7. Whether Defendants Merced Irrigation District, Merced Irrigation District, Drainage District No. 1, the County of Merced or the City of Merced were required to apply for coverage under the statewide general NPDES permit for discharge of aquatic pesticides for aquatic weed and pest control in waters of the United States ("Aquatic Pest Permit").
8. Whether Defendant County of Merced was required to apply for a NPDES Clean Water Act 402(p) permit as part of the first tier applicants.
9. Whether Plaintiffs' 60-day Notice letters contained sufficient information to permit Defendants FCWD, AA A Associates, Inc., Merced Irrigation District, Merced Irrigation District, Drainage District No. 1, the County of Merced or the City of Merced to identify the standards violated, the activities constituting the violations, the general dates and approximate locations of the violations, as required under 40 C.F.R. § 135.3(a).
10. Whether Plaintiffs have standing.
11. Whether Plaintiffs are entitled to requested injunctive relief.
12. Whether penalties apply and if so in what amount.
13. Whether Plaintiffs are prevailing parties and therefore entitled to attorney fees and costs.

VII. Case Schedule.

VIII. Consent to Magistrate Judge Jurisdiction.

IX. Corporate Identification Statement.

1. Any nongovernmental corporate party to any action in this court shall file a statement identifying all its parent corporations and listing any entity that owns 10% or more of the party's equity securities. A party shall file the statement with its initial pleading filed in this court and shall supplement the statement within a reasonable time of any change in the information.

X. Discovery Plan and Cut-Off Date.

1. At the meeting of defense and Plaintiffs' counsel on June 14, 2007, Plaintiffs proposed the parties stipulate to the appointment of a special pretrial master under Federal Rules of Civil Procedure, Rule 53, for purposes of coordinating the timing and sequence of discovery as well as resolving any discovery disputes. Defendants did not feel the appointment of a special master was warranted. It was agreed that in this Pre-Trial Conference Statement, Plaintiffs would set forth their position as to why a special master would best serve the interests of the court and the parties, and Defendants other than AA A Associates, Inc., would set forth their position as to why such appointment was not warranted.

2. The Defendants believe that the Court should assist the parties in a general discovery schedule and dates by which party depositions are taken. It is also believed that the designation of liability experts at a date which is relatively early may facilitate settlement and may also allow the parties to assess motions for summary judgment which could serve to reduce the number of claims and parties that will go forward to trial.

A. Plaintiffs' Position Regarding Need for Appointment of Master Pursuant to Federal Rules of Civil Procedure, Rule 53, for Purposes of Coordinating Discovery.

1. Under Rule 53, this court has the authority to appoint a special master to "address pre-trial and post-trial matters that cannot be addressed effectively and in a timely manner by an available district judge or magistrate judge of the district." (Rule 53(a)(1)(C)).

2. The parties have not agreed as to the necessity for and when any special master should be appointed. This will be addressed in a future scheduling order.

3. Plaintiffs contend a special master should be appointed for the following reasons.

4. The appointment of a special master in this action is warranted by the following factors: (1) the sheer number of Plaintiffs in this action which is currently 450 but will exceed 1,500 with the addition of the Baltimore Air Coil claims; (2) the number of parcels of property affected by this litigation which is currently around 200 but will exceed 500 with the addition of the Baltimore Air Coil claims; (3) by the complex environmental issues resulting from Defendants' violations of the Clean Water Act as well as other actions which have led to chemical and biological contamination of the soil and groundwater at or near Plaintiffs' properties; (4) by the number of party Defendants and the causation and liability interplay between these various public and private entities in relation to Plaintiffs' damages; and (5) the significant amount of expert involvement and analysis necessary for the evaluation of liability, causation and damages.

5. As a result of these factors, statutory provisions relating to the sequence, timing and limitations associated with discovery would not appear to result in the most efficient use of judicial resources nor the resources of the parties. The appointment of a special master to carefully craft case and issue specific pre-trial orders; resolve discovery disputes; monitor the progress of this litigation through frequent status conferences; assist the parties in relationship to the unique issues related to complex environmental matters; and to facilitate appropriate mediation or other case resolution activity, would result in the most effective utilization of the court's and parties' resources. Given the number of parties to this litigation, the percentage of the costs incurred by each party through use of a special master, would not appear to be so great as to present any hardship to the parties.

6. While this Court and Magistrate Judge are more than capable of performing each of the functions identified above, it is believed that given the court's already congested calendar and workload, that these matters could be done more effectively and in a more timely fashion through the appointment of a special master.

7. Plaintiffs proposed Attorney William L. Nagle to act as a special master in this case. For over 13 years, Mr. Nagle has served as a special master/mediator by court appointment in numerous state and federal courts. While Mr. Nagle's duties have primarily focused on complex construction defect litigation, he has worked as a special master in hundreds of environmental contamination cases as well, including Superfund sites. He also has experience in subsidence and flood related cases involving significant property damage. Plaintiffs have been in contact with Mr. Nagle in relationship to the possibility of serving as a special master in this litigation, and Mr. Nagle has confirmed he has no conflicts as defined under Rule 53(a)(2). Mr. Nagle's curriculum vitae outlining his qualifications, is attached to the Joint Mandatory Scheduling Statement as Appendix A.

B. Defendants' Position Regarding Coordinating Discovery

1. The Defendants recognize that this will be a difficult case to manage but the attorneys in this matter are all very experienced and professional. This Court has the ability and tools to control this litigation and the Defendants request that the parties and their attorneys be given the opportunity to conduct discovery before the Court appoints a Special Master and forces the parties to incur unnecessary expense. Further, the test for appointment of a pretrial master is whether a judge or magistrate judge is unable to handle the pretrial matter in an effective and timely fashion. (See FRCP 53(a)(1)(C)). To date, there have been no disputes between counsel, nor is there any indication that the Magistrate Judge cannot effectively administer this case.

2. While numerous Plaintiffs make the case large, size does not necessarily create complexity such that a special master's services are needed. All size means is that whatever the issues (either complex or simple), more people have them. Defendants will propose a standardized list of interrogatories to be served on all Plaintiffs that will identify the basic claims being made which will likely obviate the need to depose everyone. This approach has been adopted through Case Management Orders by State and Federal Courts in recent Welding Rod cases which also contain hundreds of Plaintiffs. If through the course of this case either side can demonstrate either individually or by mutual agreement that a Special Master is necessary that would be the appropriate time to make the reference.

3. If it becomes necessary to appoint a Special Master, the City of Merced and FCWD would ask the Court to consider the appointment of a Master who is local and who may be less expensive than Mr. Nagle. Specifically, these Defendants would propose Nicholas DiBiaso or Don Fischbach.

4. Defendant AA A Associates, Inc., has no opposition to the appointment of a special master for the purposes outlined by Plaintiffs, and has no opposition to the selection of William Nagle as Special Master.

5. In the event this court determines that a special master is necessary and effective in this matter, which is disputed by these Defendants, neither MID nor MIDD1 will stipulate to the use of Mr. Nagle as a special master. The firm representing these two Defendants has a great deal of knowledge concerning Mr. Nagle and his methodology in conducting special master procedures. About one half of the litigation of that firm involves construction defect litigation and it has worked with Mr. Nagle on several occasions. It is not unusual to see multiple special master sessions ongoing simultaneously on one day with Mr. Nagle as special master dividing his time between the multiple sessions which we find unacceptable. This practice also makes it especially difficult to get Mr. Nagle on the phone should a discovery dispute arise. There are other issues that impact costs and discovery procedures that we do not wish to detail here, absent further order of the court. If the court orders the use of a special master, then MID and MIDD1 will have suggestions as to who may be appropriate for this task.

6. Initial Rule 26 disclosures shall be made by all parties on or before August 13, 2007.

7. For additional parties, the parties agree that their Rule 26 Disclosures will be made on or before October 15, 2007. Thereafter, commencing October 20, 2007, any party may propound limited discovery directed at identification of parties and claims. The disclosures and discovery shall be reciprocal. Disclosures shall be made quarterly for the first year from October 15, 2007, through October 15, 2008, and semi-annually thereafter.

8. The parties agree that in this case, Rule 26 shall be amended to provide that reciprocal Rule 26 disclosures shall be made quarterly commencing January 15, 2008, and thereafter to provide information concerning any supplemental or new information pertaining to all claims and defenses.

9. The next Scheduling Conference in this case shall be held December 7, 2007, at 8:45 a.m. in Courtroom 3.

C. Non-Expert Discovery Cut-Off

1. At this juncture, the parties are not able to provide any firm dates with regard to expert and non-expert discovery, but will re-address these issues as the litigation progresses.

D. Disclosure of Expert Witnesses

1. At this juncture, the parties are not able to provide any firm dates with regard to expert and non-expert discovery, but will re-address these issues as the litigation progresses.

E. Cut-Off For Expert Witness Discovery.

1. At this juncture, the parties are not able to provide any firm dates with regard to expert and non-expert discovery, but will re-address these issues as the litigation progresses.

F. Proposed Discovery Limits

1. Given the complex nature of this litigation, the parties anticipate that statutory provisions relating to the sequence, timing, limitations and other procedural issues related to discovery will have to be modified. Specific issues will be addressed by the parties as this litigation progresses.

G. Need for A Protective Order

1. At this juncture, the parties are unaware of any specific need for a protective order relating to discovery, although the parties agree that this issue can be re-addressed as the need arises.

H. Proposals Relating to the Timing, Sequencing, Phasing or Scheduling of Discovery

1. Given the complex nature of this litigation, the parties anticipate that statutory provisions relating to the sequence, timing, limitations, and other procedural issues related to discovery will have to be modified. Specific issues will be addressed by the parties as this litigation progresses.

I. Discovery Outside Of the United States

1. At this juncture, the parties are unaware of any specific need for any foreign depositions, although the parties agree that this issue can be re-addressed as the need arises.

J. Whether Parties Anticipate Video and/or Sound Recording of Depositions

1. All parties agree that video and/or sound recording of depositions may be required in this litigation. The parties agree that proper notice to all parties as to the intended use of video and/or sound recording depositions will be provided to all counsel.

K. Proposed Date for a Mid-Discovery Status Report and Conference

1. The parties are in agreement that a further Case Management Conference in this matter is warranted. The parties would request a second Case Management Conference be scheduled by the court (or in conjunction with the duties of a Special Master) within the next 180 days.

L. Discovery Issues Relating to Electronic, Digital and/or Magnetic Data

1. The parties have carefully reviewed the court's order setting Mandatory Scheduling Conference which outlines the parties' responsibilities as to the preservation of electronic, digital and/or magnetic data. The specific timing, sequence and production procedures related to the electronic digital and/or magnetic data will be further addressed by the parties and/or a special master as this litigation progresses.

M. Pre-Trial and Trial Dates

1. Plaintiffs and Defendants have agreed that at this juncture it is unrealistic to provide this court with a trial date or any dates related to dispositive or non-dispositive motions. The parties will be ready to readdress this issue in conjunction with the subsequent scheduling conference as previously referenced in this statement.

N. Settlement Possibilities

1. None at this early stage of litigation.

O. Jury/Non-Jury

1. Plaintiffs' Complaint presents both jury and non-jury issues. Plaintiffs have demanded a jury in this action. The City of Merced and FCWD demand a jury trial in this matter.

P. Estimated Time for Trial

1. At this juncture, no reasonable estimate can be made as to the length anticipated for trial in this action.

Q. Bifurcation

1. At this juncture, the parties have not identified any specific issues in relationship to bifurcation, but agreed to preserve this issue to be addressed in further scheduling conference and/or pre-trial statements.

R. Related Matters

1. Plaintiffs have filed a Notice of Related Case pertaining to California Sports Fishing v. Diablo Grande, Inc., 1:00-cv-5979 OWW DLB.

S. Common Document Repository.

1. The parties have agreed that all documents pertaining to this case shall be stored in a common depository with a custodian mutually agreeable to all parties. All parties shall have reasonable access to and the ability to copy and otherwise access electronic data stored in the repository in accordance with the rules that they develop and will provide the Court by stipulation to be incorporated into an order governing the establishment and the maintenance of a document repository for this case.

IT IS SO ORDERED.