A federal appeals court has revived a lawsuit that alleges tile drains in California’s Central Valley discharge pollutants in violation of the Clean Water Act.
The complaint was originally filed about eight years ago by a coalition of fisheries and environmental groups that claimed the Grasslands Bypass drainage system doesn’t qualify for an agricultural exemption to the Clean Water Act because not all the discharged water originates from irrigation.
While “return flows from irrigated agriculture” aren’t considered “point sources” of pollution under the law, the plaintiffs argued the project’s tile drains also collected water containing selenium and other pollutants from land that’s not used for crop production.
Due to the Grasslands Bypass system, water with those contaminants flows away from farmland — preventing the pollution of groundwater — and into a drainage canal that directs it into a slough and the San Joaquin River instead of local wetlands.
The system is regulated as a “non-point source” of agricultural discharge, but the plaintiffs claim it should require a federal permit under the Clean Water Act because it also serves fallowed farmland as well as non-agricultural property.
After those claims were dismissed, the plaintiffs challenged the relevant rulings before the 9th U.S. Circuit Court of Appeals, which has now determined a federal judge committed legal errors in the case.
The 9th Circuit hasn’t entirely rejected the judge’s reasoning. Because separate environmental litigation required irrigators to fallow land in the area, finding that such retirements violated the Clean Water Act would now lead to “contradictory and illogical results,” the appeals court said. Retired and fallowed lands are thus considered part of the crop production that’s exempt from Clean Water Act permitting requirements.
However, the 9th Circuit has disagreed with the judge’s opinion that requiring discharged water to consist “entirely” of return flows from irrigation would be “absurd.”
Under the previous ruling, the judge found it was enough for a majority of the water to come from irrigation, but the 9th Circuit has ruled that “entirely” must be understood literally in this context.
“Given the many activities related to crop production that fall under the definition of ‘irrigated agriculture,’ Congress’s use of ‘entirely’ to limit the scope of the statutory exception thus makes perfect sense,” the appellate ruling said. “The text demonstrates that Congress intended for discharges that include return flows from activities unrelated to crop production to be excluded from the statutory exception, thus requiring an NPDES permit for such discharges.”
The judge’s interpretation led to the erroneous dismissal of the claim that a solar project in the area discharged pollutants that didn’t qualify for a Clean Water Act exemption, the appellate ruling said.
For that reason, the 9th Circuit has ordered the judge to reconsider the solar project claim.
The burden should also be on the U.S. Bureau of Reclamation and the San Luis and Delta Mendota Water Authority — which oversee the drainage system — to prove that discharges emanate only from exempt agricultural sources, the 9th Circuit said.