In early 2024, the Association joined with other ag groups in filing an amici curiae in the Pacific Coast Federation of Fishermen’s Association, et al., v. Nickels, et al., case regarding the scope of the irrigated agriculture exemption in the Clean Water Act from NPDES permitting requirements. The lawsuit specifically targeted the Grasslands Bypass project jointly operated by the US Bureau of Reclamation, San Luis Delta-Mendota Water Authority and the Grassland Water District. Drainage water from the area enters the Grassland Bypass Channel and conveys the water into the San Luis Drain. It then travels through the drain to the Mud Slough.
We are happy to report we have received the Ninth Circuit’s opinion in this case, and it was a complete win for agriculture. The following is a summary of the Court’s Opinion provided by our legal counsel, Ms. Tess Denham of Kahn, Soares & Conway:
- The Court rejected PCFFA’s reading of the exemption for irrigation return flows as applying only to flows that are entirely from irrigated agriculture and that any commingling of return flows with pollutants from other sources would negate the exemption and require an NPDES permit.
- The Court found that PCFFA’s reading, as a practical matter, would render the exemption “a dead letter.”
- The Court upheld the district court’s conclusions and finding that the exemption applies to irrigation return flows that do not contain additional “point source discharges from activities unrelated to crop production.”
- The opinion contains important analysis of Congress’ intent with respect to the CWA and the inclusion of this exemption in the CWA. In short, the exemption “exempts” point source discharges from irrigated agriculture (e.g., discharge from the San Luis Drain to Mud Slough) if other “point source” discharges are not commingled. It does not mean that there can’t be other sources of pollutants from nonpoint sources commingled in the drain, and nonpoint source discharges are not regulated under the Clean Water Act.
- After establishing the scope of the irrigation return flow exemption, the Court then evaluated Plaintiff’s alleged sources of commingled pollutants. The Court found all these sources to be nonpoint sources thus the commingling of these sources did not negate the irrigation return flow exemption.
Holding of the Court: “We hold that the irrigated agricultural exemption applies when return flows do not contain additional point source discharges from activities unrelated to crop production.”
As a practical matter, this means that irrigation return flows discharged to waters of the United States through a point source are exempt from Clean Water Act NPDES permitting requirements if other non-ag point source discharges of pollutants are not commingled. Nonpoint sources such as groundwater seepage and road runoff continue to be exempt as nonpoint sources. However, if an agricultural drain accepts discharges/pollutants from another point source (e.g., wastewater effluent, municipal stormwater discharged through an outfall, industrial point source discharge), the exemption will not apply and an NPDES permit would be required for the commingled discharge. Accordingly, entities that manage and operate agricultural drains need be sure that other sources are not authorized to discharge to agricultural drains.
Participants in the filing of the amici curiae were Association of California Water Agencies, California Cotton Ginners and Growers Association, California Farm Bureau Federation, California Fresh Fruit Association, California Rice Commission, East San Joaquin Water Quality Coalition, East San Joaquin Water Quality Coalition, Family Farms Alliance, Kern River Watershed Coalition Authority, Kings River Conservation District, Kings River Water Quality Coalition, Western Tree Nut Association, Western Growers Association, and Westside Water Quality Coalition.
