Clean Water Act suit dismissed

Sep 20, 2013

A California judge dismissed a lawsuit Monday, Sept. 16, that challenged agriculture’s long-held exemption as a pollution point-source in the Clean Water Act, according to a ruling handed down by the U.S. District Court for the Eastern District of California.

The Pacific Coast Federation of Fishermen’s Associations and other plaintiffs filed the lawsuit in 2011. The court gave the plaintiffs 21 days to file an amended complaint.

The lawsuit argued that a tiling system installed by the U.S. Bureau of Reclamation and the San Luis and Delta- Mendota Water Authority in California was to blame for pollution killing wildlife downstream.

Tiling has been exempt as a point-source pollution source for years, giving farmers a sense of security to produce crops using fertilizers and other tools without a need to seek permits. The lawsuit says the Bureau of Reclamation should have a National Pollution Discharge Elimination System, or NPDES, permit.

Agriculture interest groups including the American Farm Bureau Federation were concerned the lawsuit could open the door for the U.S. Environmental Protection Agency (EPA) to regulate tiling systems as point sources. This would add permit and water treatment costs for farmers and make it more difficult to farm.

In its ruling, the district court decision stated, “The parties do agree the only reason the project exists is to enable the growing of crops. It is undisputed that growing crops in the Grasslands area requires irrigation. Therefore, the project’s drainage of contaminated groundwater through subsurface tiles occurs only because of irrigated agriculture.”

The court ruled that previous precedent requires courts to consider the plain language of laws passed by Congress when that language is in dispute.

One of the areas being argued was about return flows— surface and subsurface water that leaves the fields after farmers irrigate them. The return flows are considered a point source, which is a single identifiable source of pollution from which pollutants are discarded, according to the EPA.

The plaintiffs argued in the lawsuit that water return flows were not exempted by the Clean Water Act when that water comes from sources other than agriculture.

“The term ‘return flows’ must narrow the type of water permissibly discharged from irrigated agriculture, or else Congress would have omitted ‘return’ and simply exempted ‘flows from irrigated agriculture’ or ‘all discharges from irrigated agriculture,’” the court said in its ruling.

“In sum, the court holds that the exemption ‘return flows from irrigated agriculture’ covers discharges from irrigated agriculture that do not contain additional discharges unrelated to crop production. Thus, if pollutants from an industrial factory, for example, were added to the flows at issue here, they would disqualify the project from the exemption.

“Plaintiffs do not plead adequate facts to support a claim that some amount of the project’s discharges is unrelated to crop production. Plaintiffs’ conclusory allegation is that some amount of the discharges is unrelated to irrigation.”

The plaintiffs said in court documents that the Bureau of Reclamation does not make the proper distinction between irrigated agricultural operations and farms that are “drainage impaired.”

In the lawsuit, the plaintiffs alleged the tile drainage system and “agricultural ditches and drains illegally discharge groundwater contaminated with selenium and other pollutants into the San Luis Drain.”

They argued that water flowing through the tiling system contained possible pollutants, therefore CWA exemptions should be eliminated in this case. — Todd Neeley, DTN