9th Circuit: No Discharge Permit Needed for Klamath Drain

By Lars-Eric Hedberg

Aug. 24 — The Bureau of Reclamation did not violate the Clean Water Act by discharging pollutants from an irrigation project drain into a river because the waters transferred via the drain are not “meaningfully distinct” from the river water, a federal appeals court ruled.

Writing for a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit, Judge Richard R. Clifton held in an Aug. 21 opinion that the Clean Water Act does not require the bureau to obtain a discharge permit because the waters flowing into the Klamath River from the Klamath Straits drainage are not distinct.

In doing so, the Ninth Circuit affirmed the district court, which had granted the bureau's motion for summary judgment.

The bureau's Klamath River Project provides irrigation water for over 200,000 acres of land in northern California and southern Oregon.

At issue is whether waters conveyed by project features from the Klamath River and Upper Klamath Lake for irrigation on surrounding land, but that eventually return to the river via a drain, require a discharge permit under Section 402.

Drain Conveyance Challenged 

A tunnel conveys waters of the Lost River Basin and runoff from the irrigation land into lower Klamath Lake. The drain, which is roughly nine miles long, then moves waters from Lower Klamath Lake into the river.

The Oregon Natural Resources Center Action alleged in its Section 505(a) citizen suit that the bureau and other defendants had violated the act by discharging pollutants from the drain into the river without a valid National Pollutant Discharge Elimination System permit.

The bureau argued that the act did not require a permit. Both parties filed motions for summary judgment.

The district court adopted in August 2012 a magistrate judge's recommendation that the court grant the bureau's motion for summary judgment, because the Water Transfers Rule, 40 C.F.R. § 122.3(i), exempts the discharge of water from the drain to the river (Or. Na. Res. Ctr. Action v. U.S. Bureau of Reclamation, 2012 BL 450513, D. Or., No. 97-3090-CL, 1/17/12).

In March 2014, the U.S. District Court for the Southern District of New York vacated the rule and remanded it to the Environmental Protection Agency. The EPA has appealed the ruling to the Second Circuit (Catskill Mountains Chapter of Trout Unlimited v. EPA, 2d Cir., No. 14-01991, 6/12/14; 2015 WLPM, 2/5/15).

Not ‘Meaningfully Distinct.'

Instead of the rule, the Ninth Circuit relied on a recent U.S. Supreme Court ruling and affirmed.

In Los Angeles County Flood Control District v. Natural Resources Defense Council, 133 S. Ct. 710, 184 L. Ed. 2d 547 (U.S. 2013), the Supreme Court held that “no pollutants are ‘added' to a body of water when water is merely transferred between different portions of that water body”.

The Supreme Court also ruled in Los Angeles County, based on precedent, that a water transfer only comes within the reach of the act where one water body is “meaningfully distinct” from another (S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 124 S. Ct. 1537, 158 L. Ed. 2d 264 (U.S. 2004)).

The Ninth Circuit concluded, based on these rulings and the physical characteristics of the features, that the waters of the strait are not “meaningfully distinct” from the river and thus do not require a discharge permit.

It reasoned that the strait is “essentially an improved version of a previously existing natural waterway,” and although the discharged water comes from runoff and another basin, “a substantial portion of the waters returned to the Klamath River by the KSD initially came from the Klamath River itself.”

Moreover, water would flow between Lower Klamath Lake and the river if the headgates and pumps were removed, the Ninth Circuit found.

Petition Possible, Remand Concerns

William Carpenter, a solo practitioner from Eugene, Ore., and attorney for the Oregon Natural Resources Center Action, told Bloomberg BNA Aug. 24 that his client is reviewing its options and may file a petition for rehearing en banc in the Ninth Circuit or petition for writ of certiorari in the U.S. Supreme Court.

“One of our concerns is that the Ninth Circuit didn't remand the case to the district court,” Carpenter said. The Ninth Circuit noted that the “meaningfully distinct” inquiry is fact-based, so it would be appropriate for a trial court to take evidence on this issue and then rule on it, Carpenter said.

“The Eleventh Circuit has, in a footnote, approved of a district court's 10-factor inquiry for determining whether one body of water is ‘meaningfully distinct' from another,” Carpenter added (Friends of the Everglades v. S. Fla. Water Mgmt. Dist, 570 F.3d 1210, 68 ERC 2121, 2009 BL 120107 (11th Cir. 2009)).

“Although the Ninth Circuit had no obligation to adopt the test, it considered only two of the 10 factors,” he said. “It offered no guidance on the proper factors for the inquiry and should have at least spelled them out.”

Carpenter also said the facts support the group's position.

“The water that comes out of the Klamath River is not the same water that goes back into it via the drain,” he said. “It has changed.”

David C. Shilton of the Department of Justice argued for the bureau.

Carpenter argued for ONRC Action.

Nicholas A. Jacobs of Somach Simmons & Dunn, Sacramento, argued for the Klamath Basin Water Users Association.

To contact the reporter on this story: Lars-Eric Hedberg in Washington at lhedberg@bna.com

To contact the editor responsible for this story: Greg Henderson at ghenderson@bna.com

The opinion of the U.S. Court of Appeals for the Ninth Circuit in Oregon Natural Resources Center Action v. U.S. Bureau of Reclamation is available at http://www.bloomberglaw.com/public/document/ONRC_Action_v_US_Bureau_of_Reclamation_et_al_Docket_No_1235831_9t.