In ONRC Action v. U.S. Bureau of Reclamation, the United States Court of Appeals for the Ninth Circuit held that the Bureau of Reclamation was not required to secure a National Pollutant Discharge Elimination System ("NPDES") permit under the Clean Water Act in order to transfer water from Lower Klamath Lake to the Klamath River through the Klamath Straits Drain. The court reasoned that because waters flowing into the Klamath River from the Drain were not meaningfully distinct, plaintiffs could not establish that the movement of those waters amounted to the addition from a point source of a pollutant to navigable waters. The well-reasoned decision of the Ninth Circuit delimits one facet of the broad prohibition on unpermitted discharges established by section 402 of the Clean Water Act ("CWA").
Background on the Klamath River and Klamath Straits Drain
The Klamath River and the Klamath Straits Drain ("KSD") are part of the Klamath Irrigation Project which provides irrigation services to areas in Oregon and California. The Project begins at the Klamath River and Upper Klamath Lake, drawing in water. That water is transferred for use on the surrounding land and connects with the Lost River Basin waters. The combined water and runoff from those areas then moves through a mountain tunnel to Lower Klamath Lake. From Lower Klamath Lake, the KSD takes the combined water back to the Klamath River.
Historically, the Klamath Straits (distinct from the KSD) connected the Klamath River with Lower Klamath Lake. In the spring, overflow from the Klamath River would traverse the Klamath Straits and enter Lower Klamath Lake. When the waters would recede, they would reveal flood marshes surrounding Lower Klamath Lake.
In the early 1900s, the Klamath Straits were closed off, thereby severing the connection between the Klamath River and Lower Klamath Lake. However, in the 1940s (long before the modern CWA was signed into law in 1972), to provide an outlet for the waters collected in Lower Klamath Lake from the Klamath Irrigation Project, the Bureau of Reclamation "excavated and channelized the [Klamath] Straits and some of the nearby marshland" to create the KSD. With the KSD, the waters from Lower Klamath Lake flow to the Klamath River. Two pumping stations along the KSD work to maintain required water elevation in the KSD and, when needed, to keep water flowing from Lower Klamath Lake to the Klamath River.
Lawsuit and District Court Decision
Plaintiff ONRC Action, an Oregon-based environmental group, brought action against the United States Bureau of Reclamation and others, alleging that the Defendants violated the CWA by discharging pollutants from the KSD into the Klamath River without the requisite permit. 33 U.S.C. § 1365(a). The CWA prohibits the non-permitted "addition of any pollutant to navigable waters from any point source." 33 U.S.C. §§ 1311(a), 1362(12).
The federal district court granted the Defendants motion for summary judgment because it found that "the discharge of water from the KSD to the Klamath River was exempted" from the CWA's permit requirement "by the Water Transfers Rule adopted by the Environmental Protection Agency [‘EPA']," which rule adoption was within the EPA's authority.
Ninth Circuit Ruling
The Ninth Circuit affirmed the district court's holding but on different grounds.1 In light of two decisions by the United States Supreme Court concerning alleged CWA violations from water transferred between two apparently different water bodies, the Ninth Circuit focused on the structure of the Klamath Irrigation Project and the hydrologic connection between the Klamath River, KSD, and Lower Klamath Lake.
In Los Angeles County Flood Control District v. Natural Resources Defense Council, 133 S. Ct. 710, 711 (2013), the Supreme Court concluded that "pumping polluted water from one part of a water body into another part of the same body is not discharge of pollutants under the CWA" because "no pollutants are ‘added' to a water body when water is merely transferred between different portions of that water body," id. at 713. The Supreme Court relied on its prior decision in South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95, 111-12 (2004), which held that a canal that pumped water into a wetland area may not be "meaningfully distinct water bodies."
Based on that case law, the Ninth Circuit concluded that "[a] water transfer counts as a discharge of pollutants under the CWA only if the two separate bodies of water are ‘meaningfully distinct water bodies.'"
Applying that standard, the Ninth Circuit found that the waters of the Straits Drain "are not meaningfully distinct from those of the Klamath River." Specifically, the Court of Appeals found that the KSD "is essentially an improved version of a previously existing natural waterway, the Straits" and "restored a longstanding hydrological connection." It relied on the fact that the KSD followed the "historic footprint of the Straits" and "pass[ed] through marshland that also provided historical hydrological connection" between the river and lake. In addition, the Ninth Circuit found that, though other water combined into Lower Klamath Lake, "much of the water that flows through the KSD originated from the Klamath River itself." Finally, the Ninth Circuit, relying on Miccosukee Tribe, held that the use of pumping stations did not create a distinction between the KSD and the Klamath River.
The Court of Appeals thus affirmed summary judgment for the Defendants, holding that they did not require a permit under the CWA because the Klamath River and Klamath Straits Drain were not "meaningfully distinct" bodies of water.
In the western United States, where movement of water across water bodies is a commonplace necessity so that supplies can be delivered to those areas where there is the highest demand, the Ninth Circuit's holding is likely to be welcome news. This is particularly the case in light of the potential that the 2012-2015 drought may be the new normal when it comes to water availability and management.