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September 10, 2019  |  Written by Brenda C. Bass

Ninth Circuit Places Burden on Dischargers to Prove Clean Water Act Agricultural Return Flow Exception Applies

The Ninth Circuit recently held that dischargers bear the burden of showing a court that their discharges meet a statutory exception to the permitting requirement in the Clean Water Act (CWA).  In Pacific Coast Federation of Fishermen’s Associations v. Glaser, No. 17-17130 (9th Cir. Sept. 6, 2019), the Ninth Circuit held that the defendant dischargers, as opposed to the plaintiffs alleging that an unpermitted discharge was occurring in violation of the CWA, must demonstrate to the court that their discharge fits the exception by being composed entirely of return flows from irrigated agriculture.  In addition, the Ninth Circuit defined the terms “irrigated agriculture” and “entirely.”

The Pacific Coast Federation of Fishermen’s Associations (PCFFA) sued the U.S. Bureau of Reclamation and the San Luis and Delta Mendota Water Authority, alleging that the agencies’ discharge from the San Luis Drain to Mud Slough was an unpermitted discharge of pollutants to a navigable water—a violation of the CWA.  The defendant agencies operate a tile drainage system called the Grasslands Bypass Project, which underlies farmland and collects irrigation water return flows and directs those flows to the San Luis Drain.  The irrigation water contains quantities of selenium and other mineral salts.  Discharges from the Grasslands Bypass Project are not made under a CWA National Pollutant Discharge Elimination System permit, because the defendant agencies considered the discharges return flows from irrigated agriculture, which are not subject to permitting requirements pursuant to 33 U.S.C. section 1342(l)(1) (Section 1342(l)(1)).

The Ninth Circuit considered three main issues: (1) which party bears the burden of showing whether a statutory exception applies; (2) the meaning of the term “irrigated agriculture” as used in Section 1342(l)(1); and (3) the meaning of “entirely” as used in Section 1342(l)(1).   As to the first, the Ninth Circuit held that the plaintiff bears the burden of establishing that an unpermitted discharge is occurring, but the defendant discharger bears the burden of showing that a statutory exception to the CWA’s permitting requirement applies to the discharge at hand.  The Ninth Circuit then held that “irrigated agriculture,” as used in Section 1342(l)(1) should be interpreted broadly to mean any discharges that are related to crop production, which can include discharges from fallow or retired lands.  Next, the Ninth Circuit held that Section 1342(l)(1), which states that the exception for agricultural return flows applies to “discharges composed entirely of return flows. . .” (emphasis added), must be interpreted literally.  That is, “entirely” does not mean a majority, but “wholly, completely, [or] fully.”  PCFFA v. Glaser, at p. *14.

As a result, the Ninth Circuit remanded the case back to the District Court to proceed with further litigation on the specific claims and facts at issue in this litigation consistent with the interpretations set forth in this opinion.

For questions or additional information on this topic please contact Brenda Bass at

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