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August 24, 2015  |  Written by Nicholas A. Jacobs

Ninth Circuit Rules No NPDES Permit Required for Klamath Straits Drain

On August 21, 2015, the Ninth Circuit Court of Appeals upheld the Oregon District Court’s grant of summary judgment in favor of the United States Bureau of Reclamation (Reclamation), Klamath Water Users Association (KWUA) and others.  Plaintiff ONRC Action’s complaint alleged that Reclamation needs a Clean Water Act (CWA) discharge permit to operate the Klamath Straits Drain (Straits Drain), which returns flows from the Klamath Irrigation Project (Klamath Project) and associated wildlife refuges to the mainstem of the Klamath River.  The Ninth Circuit held that because the waters flowing into the Klamath River from the Klamath Straits Drain are not “meaningfully distinct,” as that term is used in two U.S. Supreme Court cases, a CWA permit is not required.

Klamath Straits Drain Background

The Klamath Project was authorized in 1905 under the Reclamation Act of 1902.  The Project straddles the Oregon-California border, covering territory in Oregon’s Klamath County and California’s Siskiyou and Modoc Counties and providing irrigation services to some 210,000 acres of land through a complex system of dams, pumping plants, canals, laterals, tunnels, and drains.  The authorized purpose of the Klamath Project is exclusively the irrigation/reclamation purposes of the 1902 Reclamation Act.  However, the operation of Project works results in water becoming available to wildlife refuges, which also are served by the Project’s drainage facilities.

The Project utilizes two primary water sources:  the waters of Upper Klamath Lake and the Klamath River, and the waters of the Lost River Basin, which include Clear Lake, the Lost River, and Tule Lake.  Water from the Klamath River is diverted at several points, and distributed throughout the Klamath Project.  Klamath River waters from some points of diversion also mingle with water from the Lost River watershed, and waters are collected in the Lower Klamath Lake area and from there channeled into the Straits Drain which conveys it back to the Klamath River.  The Straits Drain contains water throughout its entire length year-round.

Constructed in the 1940s and enlarged in 1976, the Straits Drain runs 8.5 miles in the Lower Klamath Lake basin from the Oregon-California border to the Klamath River.  The Straits Drain runs north and west, using two pumping stations along the way to move the water up to the elevation necessary to allow the water to drain into the Klamath River.  Inflow to the Straits Drain from California can include irrigation drainage and runoff and returns from wildlife refuges, and inflow from the Oregon side generally consists of irrigation runoff and return flow from agricultural land.  From the final pumping station, water from the Straits Drain flows as the result of gravity for approximately two miles to the point of confluence with the Klamath River in Oregon.

District Court Ruling

The issue in this case is whether, in the absence of an authorizing permit, the movement or discharge of water from the Straits Drain to the Klamath River is a violation of the federal CWA.  Under the CWA, the addition of pollutants to navigable waters from point sources is illegal unless the discharger has first obtained a permit, known as a National Pollutant Discharge Elimination System (NPDES) permit.  There has been considerable debate and litigation over individual words, and word groupings, in this statutory prohibition.  For example, the CWA further defines “navigable waters” to mean “waters of the United States” and there have been regulations and proposed regulations, and much litigation, about the meaning of this term.  Likewise, the phrases “addition of pollutants” and “from a point source” are matters of dispute.  NPDES permits, traditionally associated with municipal wastewater or industrial discharges, can impose significant regulatory burdens and must be renewed every five years.

ONRC Action brought the case, suing Reclamation, which owns and operates the Straits Drain.  KWUA and others intervened on the side of Reclamation because of the consequences to Klamath Project irrigators if a CWA permit were required and the potential precedential effects elsewhere in the Klamath Project.

At the district court level, Reclamation, KWUA and the other intervenor-defendants raised two primary defenses.  First, they argued, based on circumstances of this facility and the Klamath Project, that the waters of the Straits Drain and Klamath River are not “meaningfully distinct” and, as such, no NPDES permit is required because there is no “addition” of any pollutant.

In the alternative, the defendants asserted an EPA regulation, adopted in 2008, known as the “water transfers rule.”  See 40 C.F.R. § 122.3(i).  Under the water transfers rule, the mere movement of water from one water body that is “waters of the United States” (here, the Straits Drain) to another water body that is “waters of the United States” (here, the Klamath River) does not constitute a discharge, or addition of pollutants to, waters of the United States.  In 2012, the District Court granted defendants’ motions for summary judgment when it explicitly found that the Straits Drain itself to be “waters of the United States” (for various reasons) and that the defendants demonstrated proper application of the “water transfers rule” and, on that ground, held there is no requirement for an NPDES permit.

Ninth Circuit Ruling

Noting that it may uphold a grant of summary judgment based on any ground found in the underlying record, the Ninth Circuit upheld the District Court’s ruling on the grounds that the Straits Drain and Klamath River are not “meaningfully distinct” water bodies.  The “meaningfully distinct” test comes from two U.S. Supreme Court decisions.  See South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–12 (2004); Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, ___ U.S. ___, 133 S. Ct. 710 (2013).  The Court based its ruling on several factual findings.  First, it found that “the [Straits Drain] is essentially an improved version of a previously existing natural waterway, the Straits.”  Second, that “much of the water that flows through the [Straits Drain] originated from the Klamath River itself.”  Finally, the opinion concurs with the District Court’s factual findings that “the [Straits Drain], like the Klamath Straits, creates a hydrological connection between the Klamath River and Lower Klamath Lake,” and “if the headgates and the pumps were removed, it would be possible for water to flow between the Klamath River and Lower Klamath Lake.”

Having upheld the District Court’s decision on the threshold issue of whether the Straits Drain and Klamath River are “meaningfully distinct,” the Ninth Circuit declined to further rule on whether the water transfers rule serves as an alternative ground on which to uphold the District Court’s decision.

A copy of the Ninth Circuit’s opinion may be found here.

For questions please contact Nick Jacobs at 916-446-7979, or njacobs@somachlaw.com.

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