Tuesday, September 17, 2019
The Clean Water Act (CWA) has often been in the agricultural news in recent years. Most of that attention has focused on the Waters of the United States” (WOTUS) rule, including the recent regulatory redefinition of the rule. But there’s another issue that’s been lurking in the background, and it involves farm field drainage.
Are return flows to a watercourse from agricultural drainage activities exempt from the CWA permit requirements? It’s the topic of today’s post.
With the enactment of the federal water pollution control amendments of 1972 (more commonly known as the CWA, the federal government adopted a very aggressive stance towards the problem of water pollution.
The CWA essentially eliminates the discharge of any pollutants into the nation's waters without a permit. The CWA recognizes two sources of pollution. Point source pollution is pollution which comes from a clearly discernable discharge point, such as a pipe, a ditch, or a concentrated animal feeding operation. Point source pollution is the concern of the federal government. Nonpoint source pollution, while not specifically defined under the CWA, is pollution that comes from a diffused point of discharge, such as fertilizer runoff from an open field. Control of nonpoint source pollution is to be handled by the states through enforcement of state water quality standards and area-wide waste management plans.
Importantly, in 1977, the Congress amended the CWA to exempt return flows from irrigated agriculture as a point source pollutant. Thus, irrigation return flows from agriculture are not considered point sources if those “...discharges [are] composed entirely of return flows from irrigated agriculture.” See, e.g., 33 U.S.C. §1342(l)(1); 40 C.F.R. §122.3. See also, Hiebenthal v. Meduri Farms, 242 F. Supp. 2d 885 (D. Or. 2002). This statutory exemption was elaborated in a 1994 New York case, Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir. 1994). In that case, the court noted that when the Congress exempted discharges composed “entirely” of return flows from irrigated agriculture from the CWA discharge permit requirements, it did not intend to differentiate among return flows based on their content. Rather, the court noted, the word “entirely” was intended to limit the exception to only those flows which do not contain additional discharges from activities unrelated to crop production.
In Pacific Coast Federation of Fishermen’s Associations v. Glaser, No. 17-17310, 2019 U.S. App. LEXIS 26938 (9th Cir. Sept. 6, 2019), the plaintiffs (various fishing activist groups) filed a CWA citizen suit action claiming that the defendant’s (U.S. Bureau of Reclamation) Grasslands Bypass Project in the San Joaquin Valley of California was discharging polluted water (water containing naturally-occurring selenium from soil) into a WOTUS via a subsurface tile system under farmland in California’s Central Valley without a CWA permit. The plaintiffs directly challenged the exemption of tile drainage systems from CWA regulation via “return flows from irrigated water” on the basis that groundwater discharged from drainage tile systems is separate from any irrigation occurring on farms and is, therefore, not exempt. After the lower court initially refused to grant the government’s motion to dismiss, it later did dismiss the case noting that the parties agreed that the only reason the project existed was to enable the growing of crops requiring irrigation, and that the drainage of contaminated water only occurred due to irrigated agriculture. The lower court noted that the plaintiffs failed to plead sufficient facts to support a claim that some discharges were unrelated to agricultural crop production. Later, the plaintiffs retooled their complaint to claim that not all of the irrigated water that was discharged through the tile systems came from crop production. Rather, the plaintiffs claimed that some of the discharges that flowed into groundwater were from former farmlands that now contained solar panels. It was this “seepage” from the non-farmland that the plaintiffs claimed was discharged in the farm field tile system and caused the system to contain pollutants that didn’t come exclusively from agricultural crop irrigation. The lower court found the tile system to be within the exemption for “return flows from irrigation,” noting that “entirely” meant “majority” because (in the court’s view) a literal interpretation of the amended statutory language would produce an “absurd result.”
The appellate court reversed. The appellate court held that discharges that include irrigation return flows from activities “unrelated” to crop production are not exempt from the CWA permit requirement. To the appellate court, “entirely” meant just that – “entirely.” It didn’t mean “majority” as the lower court had determined.
What’s the impact of the appellate court’s decision? After all, shouldn’t the appellate court be praised for construing a statute in accordance with what the law actually says? What was the concern of the lower court of a literal interpretation of the statute? For starters, think of the burden of proof issue. Does the appellate court’s decision mean that a plaintiff must prove that some discharges come from non-agricultural irrigation activities, or does it mean that upon an allegation that irrigation return flows are not “entirely” from agricultural crop production that the farmer must prove that they all are? If the latter is correct, that is a next-to-impossible burden for a farmer. Such things as runoff from public roadways and neighboring farm fields can and do often seep into a farmer’s tile drainage system. If that happens, at least in the Ninth Circuit (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington), a farmer’s discharges will require a CWA permit. This is the “absurd result” that the lower court was trying to avoid by construing “entirely” as “majority.”
The appellate court remanded the case to the lower court for further review based on the appellate court’s decision. However, the point remains that the appellate court determined that the exception for return flows from agriculture only applies when all of the discharges involved comes from agricultural sources. That’s why the case is important to any farmer that irrigates crops and should be paid attention to.