By Ching Lee, Ag Alert
In what has been described as a resounding legal victory for agriculture, a federal appeals court has ruled that irrigation return flows discharged to waters of the United States through agricultural drains remain exempt from federal permitting requirements.
The 9th U.S. Circuit Court of Appeals decided earlier this month that operation of a large-scale Central Valley agricultural drainage system does not require a permit under the federal Clean Water Act because the discharge is composed entirely of return flows from irrigated farmlands.
The three-judge panel upheld the dismissal of a lawsuit alleging that the U.S. Bureau of Reclamation and the San Luis & Delta Mendota Water Authority’s operation of the Grassland Bypass Project and the San Luis Drain violated the Clean Water Act.
At issue is whether the project, which comprises an extensive underground tile drainage system that takes in water used for crop irrigation, should be exempt from federal National Pollution Discharge Elimination System permitting requirements. The appeals court said yes.
While the Clean Water Act generally prohibits the discharge of pollutants into surrounding waters without a permit, it does not regulate agricultural return flows, which refer to irrigation water that doesn’t get absorbed by plants or evaporate but flows back into streams and rivers or infiltrates into groundwater.
Under the federal exemption, the project—which serves 97,400 acres of land within the Delta-Mendota subbasin of the San Joaquin Valley—has operated without an NPDES permit since 1997. In place of a permit, the project’s discharges have been subject to state and local environmental regulations that set water quality standards for pollutants, require monitoring and establish management practices.
Fishing and environmental groups sought to undo the project’s exempted status, saying it should be revoked because the irrigation return flows commingled with “nonpoint source” pollution such as groundwater seepage, road runoff or dust that’s unrelated to irrigated agriculture prior to discharge.
The court rejected their argument, concluding “that the exemption applies because the alleged pollutants are either added to the Project via nonpoint sources or via a point source related to crop production.” The opinion said the groups’ reading of the statute “is inconsistent with the purpose and structure of the (Clean Water Act), and as a practical matter would render the irrigated agriculture exemption a dead letter.”
Kari Fisher, senior director and counsel for the California Farm Bureau, said the organization has been following the case since 2011, “given the enormous impact on California growers if the Clean Water Act’s irrigated agricultural exemption was narrowed.”
Farm Bureau and other agricultural groups filed a “friend of the court” brief in support of the U.S. Bureau of Reclamation, San Luis & Delta-Mendota Water Authority and the Grassland Water District, “pointing out that the lawsuit conflicts with the congressional intent of the Clean Water Act and threatened irrigated agriculture in the West,” Fisher said.
The brief noted that agricultural drainage systems much like the San Luis Drain operate throughout the West and are a necessary part of irrigation infrastructure, and that irrigation is indispensable to farming in the West. As such, the case may have far-reaching impacts on farmlands that use and rely on irrigation drainage facilities.
The ruling contains numerous points raised in the brief, including recognition of the broad scope of “irrigated agriculture” and the practical impossibility of excluding diffuse, nonpoint source pollutants.
“The court’s determination of this issue is of utmost importance to everyone involved with irrigated agriculture because without the exemption, thousands of growers and water management entities may be forced to apply for NPDES discharge permits or face immediate discharger liability under the (Clean Water Act),” agricultural groups said in their filing.
California growers already comply with the state’s Irrigated Lands Regulatory Program, which regulates discharges from commercial irrigated lands. If the federal exemption were nullified, Fisher said, they would also be required to apply for federal discharge permits under the Clean Water Act.
Though the 9th Circuit reaffirmed a key protection for irrigated agriculture, irrigators and managers of agricultural drains still must ensure that other sources of pollution are not discharged to agricultural drains. The ruling made clear that the federal exemption does not apply if agricultural drains accept pollutants from sources such as municipal stormwater, wastewater effluent or industrial discharge.
Ching Lee is editor of Ag Alert. She can be reached at clee@cfbf.com.
