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1 Federal Water Pollution Control Act,33 U.S.C. § 1362(14)(known as the Clean Water Act)!o <br /> • 2 Wastewater from Defendants' dairy meets the broad definition of a pollutant. The roadside <br /> 3 ditch is a tributary of the San Joaquin River, and as such constitutes a water of the United States <br /> 4 within the meaning of the Clean Water Act'-t Because Defendants do not have a permit to <br /> 5 discharge pollutants, their discharge violate 33 U.S-C. §1311 (Clean Water Act section 301) asl <br /> 6 incorporated by Water Code section 13385(a)(5). <br /> 7 On at least fourteen days during the three years preceding this complaint,Defendants <br /> 8 discharged pollutants into the ditches bordering their property. Witnesses identified discharge <br /> 9 on the following dates:January 23, 1997,January 29 - 31, 1997,January 25, 1998,February 3, <br /> 10 1998, February 4, 1998, a week in February 1998 (between Atwal's visits),February 18, 1998, <br /> 11 and May 13, 1998. <br /> 12 Pursuant to Water Code section 13385(a)(5) and(b)(1),Defendants are liable for a <br /> 13 penalty of$25,000 "for each day in which the violation occurs,"yielding a total penalty of <br /> • 14 $350,000.00 <br /> 15 Defendants failed to establish any defense. As briefed in the People's pre-trial brief, the <br /> 16 Defendants are legally responsible for managing their waste,even in the face of stormwater from <br /> 17 uphill properties. A pertinent circumstance to all of the discharges is the Kimbrough's <br /> 18 longstanding familiarity with the drainage towards the property. Tucked among their testimon <br /> 19 and videotape narration regarding the "flooding" are numerous comments demonstrating their <br /> 20 knowledge of the BBID issue,first explained to John Menke in 1982,and the Patterson Run <br /> 21 Creek issue, which Joanne Kimbrough reported to the Regional Board in 1993. [Exhibit 41 <br /> 22 Defendants also did not meet their burden of proving that the penalty should be reduced <br /> 23 <br /> 24 20 . See, e.g., Carr v.Alta Verde Industries, Inc. (5h Cir. 1991) 931 F.2d 1055,1059- <br /> 25 60 (holding feedlot to be a point source). <br /> 26 21. United States v. Ashland Oil and Transp. Co. (6ih Cir. 1974) 504 F.2d 1317, 1323- <br /> 25_ The discharge in Ashland Oil was to a tributary to a tributary to a tributary to a tributary to a <br /> 27 navigable river. 504 F.2d at 1320. Thus the Clean Water Act's reach to "navigable waters"or <br /> the interchangeable term "waters of the United States" [33 U.S.C. § 1362(7)] is broadly <br /> 28 interpreted. The govemment need not prove that defendant's contamination ultimately reachedL <br /> navigable river. Id. 504 F.2d at 1329. <br /> Plainriff's Pncr-m,-; l <br />