[env-trinity] Court reverses ruling on Calif. agricultural drainage permit

Tom Stokely tstokely at att.net
Tue Sep 10 07:36:57 PDT 2019

See the press release from the law offices of Stephan Volker below.


Court reverses ruling on Calif. agricultural drainage permit
Jeremy P. Jacobs, E&E News reporter  Published: Monday, September 9, 2019
The San Luis Drain at Kesterson National Wildlife Refuge is pictured here in 1985. Robert Dawson/Smithsonian American Art Museum

A federal appeals court on Friday breathed new life into a long-running dispute concerning agricultural drainage in California's Central Valley.

The 9th U.S. Circuit Court of Appeals reversed a lower court ruling, saying it erred in its interpretation of a Clean Water Act permitting exception for agricultural discharges.

The case concerns a complex system in the San Joaquin Valley that captures agricultural wastewater that is rich in pollutants, like selenium, before it contaminates the area's groundwater aquifer.

A coalition of fishermen's groups led by the Pacific Coast Federation of Fishermen's Associations has contended since 2001 that the Grasslands Bypass Project, a tile drainage system managed by the Bureau of Reclamation and San Luis & Delta Mendota Water Authority, requires a Clean Water Act permit for discharges into a navigable water.

The project funnels those waters through part of the San Luis Drain, Mud Slough, San Joaquin River and Sacramento-San Joaquin Bay Delta east of San Francisco.

Reclamation and the water authority, however, point to an exception from permitting requirements under the Clean Water Act for discharges "composed entirely" of return flows from irrigation agriculture.

A lower court sided with Reclamation and the water district, dismissing all of the challengers' claims.

The San Francisco-based 9th Circuit, however, reversed that decision on several grounds.

In particular, the three-judge panel sided with the challengers that the lower court improperly placed the burden on them to show that the discharges were not covered by the exception — instead of vice versa.

"The defendant carries the burden to demonstrate the applicability of a statutory exception to the CWA," Judge Milan Smith wrote before quoting from the exception. "Defendants had the burden of establishing that the Project's discharges were 'composed entirely of return flows from irrigated agriculture.'"

Additionally, the court disagreed with the lower court's reading of "entirely" in the exception for agricultural water. The lower court said that it must be composed of a "majority" of water produced in the crop process, contending that "entirely" would lead to "an absurd result."

The 9th Circuit disagreed, noting that both the challenges — as well as Reclamation and the water district — said the court erred in that interpretation.

The judges remanded the case to federal district court for further proceedings. There remain significant disputes in the case between the two sides, including whether there is evidence proving there is water entering the drain system that is unrelated to agricultural flows.
Twitter: @GreenwireJeremy Email: jjacobs at eenews.net



Stephan C. Volker

Alexis E. Krieg

Stephanie L. Clarke

Jamey M.B. Volker (Of Counsel)


Law Offices of

Stephan C. Volker

1633 University Avenue

Berkeley, California 94703

Tel: 510/496-0600 ˜ Fax: 510/845-1255

e-mail: svolker at volkerlaw.com



September 9, 2019


PRESS RELEASE                                                                                           FOR IMMEDIATE RELEASE






Noah Oppenheim, Executive Director, PCFFA- Tel: (415) 561-5080   Email:  noah at ifrfish.org

Bill Jennings, Executive Director, CSPA -Tel:  (209) 464-5067   Email: deltakeep at me.com

Stephan Volker, Lead Counsel for Plaintiffs -Tel: (510) 496-0600   Email:  svolker at volkerlaw.com



            On Friday, September 6, the Ninth Circuit Court of Appeals handed commercial and sports fishermen, biologists and conservation groups a major victory in their efforts to clean up contaminated discharges from the Central Valley’s Grasslands Bypass Project.  Owned and operated by the federal Bureau of Reclamation and local irrigation districts, the Project collects wastewater from 97,400 acres of farmed and unfarmed lands within California’s Central Valley.  The Project discharges substantial quantities of selenium and other pollutants into state and federal wildlife refuges and thence the San Joaquin River, the Delta and San Francisco Bay.  The Court unanimously reversed Federal District Judge Kimberly Mueller’s dismissal of their lawsuit against the Project, ruling that a Clean Water Act discharge permit is required for the Project despite the Act’s exemption of return flows from irrigated agriculture so long as any part of its wastewater is generated by activities unrelated to crop production.  


            In reaching its decision, the Court issued three landmark rulings under the Clean Water Act’s exemption for discharges from irrigated agriculture. First, the Court held that the Defendants had the burden of establishing that their discharges were “composed entirely of return flows from irrigated agriculture.”  Second, the Court held that the exception was limited to “only those flows that do not contain additional discharges from activities unrelated to crop production.” Third, the Court held that the District Judge erred in ruling that the exemption applied so long as a “majority” of the wastewater originated from agricultural activities.  The Court ruled that only those discharges that are composed entirely of return flows from irrigated agriculture were exempt.  

            Applying these rulings to the commingled discharges of the Grasslands Bypass Project, the Court held that all of the Plaintiffs’ claims should proceed. First, the commingled discharges from a solar project were not exempt even though they did not comprise a majority of the Project’s wastestream, since only those discharges that “were composed entirely of return flows from irrigated agriculture were exempt.” Second, the Court overturned the District Judge’s dismissal of the Plaintiffs’ claims regarding polluted ground water that seeped into the Project’s massive drain from unfarmed lands including highways and residences.  Because those commingled discharges were not composed entirely of return flows from irrigated agriculture, they did not fall within the exemption.  Third, the Court held the fact that these non-exempt flows were commingled with discharges from irrigated agriculture did not bring them within the exemption.  


            Accordingly, because all of the Project’s discharges are commingled, all of the Plaintiffs’ claims were proper.  Therefore the Court reversed the District Judge’s dismissal of them.  


            The Plaintiffs praised the Court’s ruling.  Noah Oppenheim, Executive Director of the Pacific Coast Federation of Fishermen’s Associations, stated:  “We are gratified that the Ninth Circuit agreed with our arguments and held the Bureau of Reclamation to account for discharging massive quantities of pollutants into the San Joaquin River, the Bay-Delta Estuary, and ultimately San Francisco Bay without the discharge permit that is required under the Clean Water Act.  This ruling will help protect the salmon and salmon fishing jobs that require a healthy Delta free of toxic discharges from the San Joaquin drainage, as well as restore the vast populations of salmon and steelhead that historically swam up the Delta and the San Joaquin River.”  


            Bill Jennings, Executive Director of the California Sportfishing Protection Alliance, stated: “After decades of inaction by our federal government to halt the contamination that has destroyed habitat for our fish and wildlife, it is reassuring to see our federal court issue a strong ruling enforcing the Clean Water Act’s mandate for fishable and swimable rivers.”  


            Stephan Volker, Lead Counsel for the Plaintiffs, agreed that “the Court’s Ruling ends over forty years of evasion of the Clean Water Act’s strict requirement for discharge permits.  We are pleased that the Ninth Circuit issued a well-reasoned ruling enforcing this vital statute and protecting our rivers.”  

            The Ninth Circuit’s September 6, 2019 Order is attached in PDF format.  Additional documents pertaining to the litigation can be obtained from the Volker Law Offices.
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