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Group Sues U.S. Bureau of Reclamation for Discharging Pollutants

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California’s Central Valley is home to fertile agricultural land, though it receives little rainfall. The federal government helped alleviate this problem by constructing irrigation and drainage projects to provide water to the region. A diverse group of plaintiffs sued the United States Bureau of Reclamation and San Luis & Delta Mendota Water Authority on the grounds that the drainage system discharged pollutants into the surrounding waters, violating the Clean Water Act (“CWA”). The plaintiffs appealed rulings by the district court in favor of the defendants.

Background

          The Central Valley Project (“CVP”) transferred water from the Sacramento River to southern regions of the Central Valley. Water projects that bring fresh water to agricultural areas must remove the salty water that remains after crops are irrigated away from the service area. The Grasslands Bypass Project (“the Project”) performed this necessary function, to prevent the leaching of selenium and salt-rich soils into the groundwater. The Project was “designed to collect and convey contaminated groundwater from lands adjacent to and upstream of the Drain to Mud Slough.” Both plaintiffs and defendants acknowledged the Drain discharges substantial amounts of selenium and other pollutants into the Mud Slough, San Joaquin River, and Bay-Delta Estuary.

Analysis

          The Clean Water Act requires government agencies to obtain a National Pollutant Discharge Elimination System (“NPDES”) permit before discharging pollutants from a point source into navigable waters of the United States. The dispute between the parties is whether the Drain’s discharges required defendants to obtain an NPDES permit, or whether the discharges were exempt from the permit requirements. Plaintiffs argued the district court erred in its interpretation of CWA § 1342(l)(1). Plaintiffs argued the district court erred by placing the burden of proof on the plaintiffs to show the Drain’s discharges were not exempt.

          Plaintiffs argued the district court erred in interpreting the term “discharges…from irrigated agriculture.” In the pretrial order, the district court stated the plaintiffs bore the burden of proving that the discharges were not exempt from CWA’s permitting requirement. The U.S. Court of Appeals, however, agreed with the plaintiffs that the burden was on the defendants to prove the discharges were not covered by an exception to the NPDES. The appellate court cited the case N. California River Watch v. City of Healdsburg, 496 F.3d 993, 1001 (9th Cir. 2007), which held that once a plaintiff establishes the elements of a violation under the CWA, the burden to demonstrate an exception to the CWA is placed on the defendant.

          The plaintiffs argued that the district court interpreted NPDES incorrectly. The district court stated that NPDES exempted discharges related to crop production from the CWA’s permitting requirement. However, the Court of Appeals noted that NPDES’ statutory text, its context, legislative history, and prior case law demonstrate Congress intended to define “irrigated agriculture” broadly. The Court of Appeals held that the district court’s interpretation of “irrigated agriculture” was accurate.

          The third error plaintiffs argued the district court made was interpreting the word “entirely” to mean “most.” The district court rejected the literal interpretation of “entirely” believing “it would lead to an absurd result.” The U.S. Court of Appeals disagreed with the district court. The Court of Appeals concluded Congress used the word “entirely” to limit the scope of its statutory interpretation. The court stated that Congress intended for NPDES to require permits for discharges “that include return flows from activities unrelated to crop production.”

Effects of District Court’s Errors

          The defendants argued the district court’s errors were harmless because “the record contains no evidence of any discharge of pollutants unrelated to agricultural flows.” The U.S. Court of Appeals said that the erroneous interpretation of the word “entirely” was the but-for-cause of the dismissal of the Plaintiffs’ CWA Claim. The court found it reasonable to conclude that the plaintiffs would have proceeded to trial if the district court had interpreted “entirely” correctly. The defendants would have been required to “prove the discharges were composed entirely of return flows from irrigated agriculture.” The Court of Appeals held the erroneous dismissal of the plaintiffs’ other claims were also impactful. The defendants should have been required to show the discharges were composed entirely from irrigated agriculture. According to the Court of Appeals, even if there were a lack of evidence that demonstrated the discharges arose from activities unrelated to crop production, “it would not have been fatal to Plaintiffs.”

Conclusion

          The United States Court of Appeals concluded the district court properly interpreted “discharges…from irrigated agriculture.” The Court of Appeals, however, found the district court erred when it interpreted “entirely” to mean “majority,” and when it placed the burden on the plaintiffs, instead of the defendants, to show the discharges were not covered under § 1342(l)(1) of the CWA. The Court also held that the district court erred by striking plaintiffs’ seepage and sediment theories of liability from their motion for summary judgment. For more information on this case or for assistance arguing your case against the government, contact Whitcomb Selinsky PC.

About the AuthorRaymundo Ribota

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