NINTH CIRCUIT UPHOLDS RULING — NPDES PERMITS ARE NOT REQUIRED FOR TRANSFERS OF WATER IN THE KLAMATH BASIN

ONRC Action v. United States Bureau of Reclamation (9th Cir. Or. Aug. 21, 2015)
cdn.ca9.uscourts.gov/datastore/opinions/2015/08/21/12-35831.pdf

The Ninth Circuit Court of Appeals was recently presented with the issue of whether the Bureau of Reclamation violated the Clean Water Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit. Finding that the waters of the Klamath Straits Drain and Klamath River were not meaningfully distinct, and applying the reasoning from Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, 133 S. Ct. 710, (2013), the court concluded that a Clean Water Act permit was not required.

Background

The original case was filed in 1997 as a citizen’s suit under § 505(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a), commonly referred to as the Clean Water Act. Plaintiff Oregon Natural Resources Council Action (“ONCR”), an environmental group, asserted that the Bureau of Reclamation and its commissioner violated the Clean Water Act by discharging pollutants from the Klamath Straits Drain into the Klamath River without a permit. The case was stayed for settlement negotiations for years, dismissed, and then reopened on motion. The magistrate judge’s report and recommendation granting the Bureau’s motion for summary judgment were adopted by the district court. The recommendation was based on the conclusion that the Klamath Straits Drain, which connects Lower Klamath Lake and the Klamath River is a water of the United States as defined by the Clean Water Act, and therefore a discharge of water from the Klamath Straits Drain to the Klamath River would be exempt from the Clean Water Act’s permitting system by the EPA’s Water Transfers Rule. The Water Transfers Rule defines water transfers as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.” 40 CFR 122.3(i). Under the Rule, “water transfers” are exempt from the NPDES permitting requirements because the transfers do not result in the addition of a pollutant.

On appeal, ONCR raised the issues of whether the discharge of water from the Klamath Straits Drain and the Klamath River was exempted by the Water Transfers Rule and whether the adoption of the Water Transfers Rule was within the EPA’s authority.

The Ninth Circuit panel neatly sidestepped the issue of the validity of the Water Transfers Rule, relying on the holding in Los Angeles County Flood Control Dist. v. Natural Resources Defense Council, __ U.S. __, 133 S. Ct. 710, 184 L. Ed. 2d 547 (2013), which was issued after the district court entered its decision. In the Los Angeles Flood Control Dist., the Supreme Court held that the flow of water from one portion of a river through a concrete channel or other engineered improvement within a river, then back into the river did not constitute a discharge of a pollutant under the Clean Water Act. In summary, the Court held that that “pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the Clean Water Act,” as no pollutants are being “added”. Id. at 711, citing to South Florida Water Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109-12 (2004).

In the ONCR case, the Ninth Circuit panel found that the record demonstrated that waters of the Klamath Straits Drain were not meaningfully distinct from those of the Klamath River. In reaching this conclusion it summarized the flow of water through the Klamath Irrigation Project as originating from the Klamath River, then flowing through parts of the Project into Lower Klamath Lake, and then flowing back to the Klamath River via the Klamath Straits Drain. While recognizing that the water was combined with other waters during its journey, including waters from the Lost River Basin, from spring-fed streams, and from runoff, the court concluded that a substantial portion of the water returned to the Klamath River through the Klamath Straits Drain came originally from the Klamath River and was not meaningfully distinct.

Further, despite the excavation and channelization of the previously existing natural waterway, as well as the addition of two pumping stations to ensure the flow of water through the Klamath Straits Drain, the Ninth Circuit viewed the Klamath Straits Drain as essentially an improved version of the previously existing natural water way. The panel relied on the district court’s finding that the Klamath Straits Drain provided a hydrological connection between the lake and river, just as the original Klamath Straits, and that if the headgates and pumps of Klamath Straits Drain were removed, waters would flow between the Klamath River and the Klamath Straits Drain. Because the waters flowing into the Klamath River from the Klamath Straits Drain were not meaningfully distinct from those in Klamath River, the court held that no permit was required under the Clean Water Act.

The validity of the EPA’s Water Transfer Rule has been the source of much litigation, some of which is ongoing. Unfortunately, the Ninth Circuit panel decision did not reach the question of whether the rule adopted by the EPA was properly within its authority and was therefore valid.

By Lynn Steyaert and Laura Schroeder

As a result of concerns relating to failures of unpermitted dams, the Department of Ecology issued notice that owners of small reservoirs built without permits must report their dams for safety inspections by September 1, 2008 or face possible fines.  Following an inspection, owners may be required to hire an engineer to provide recommendations on how to bring facilities up to safety standards.

To reduce the possibility of dam breaches that create hazards for people and property downstream, the department has been scanning aerial photographs statewide to locate existing un-permitted reservoirs that are two acres or more that may hold 10 acre-feet of water or more.  Under RCW 90.03.350, the Department is responsible for regulating water reservoirs capable of storing 10 acre-feet or more above ground level for any use. As of August 4, 2008, the Department reported having spotted 594 un-permitted dams of two acres or more, with 244 of those appearing to be high hazard dams.

Owners, who fail to report their reservoirs, obtain needed state permits, and correct deficiencies, may face fines of up to $5,000 per day.  The Department may also order dangerous reservoirs be drained and dams removed.  The Department further recommends that even those reservoirs not requiring a permit, should be designed by licensed engineers and inspected periodically, as the owner may be liable for property damage if their dam were to fail.

At the end of last year, the Nevada Division of Water Resources issued a bulletin to water right professionals notifying them that the Division will be refocusing its review of applications for extension of time for proof of completion of works or extensions of time for proof of beneficial use.  NRS 533.380(3) precludes the State Engineer from granting an extension unless the applicant provided proof that he is proceeding in good faith and with reasonable diligence to perfect the application. Reasonable diligence was defined by statute as “the steady application of effort to perfect the application in a reasonably expedient and efficient manner under all facts and circumstances.”

Unfortunately, the Division has not promulgated regulations that would clarify the type of activities that are sufficient to warranting the granting of an extension.  The application form instruction sheet does provide some examples, however, of what types of activities can be highlighted as indicative of progress made during the previous year, including descriptions of any facility or feature completed, identification of project reports or engineering drawings submitted for review or recorded pursuant to applicable law, and explanation of conditions that adversely effected the applicant’s ability to establish beneficial use.  Other suggestions are viewable on the Division’s website at http://water.nv.gov/Forms/formroom.cfm, on the instruction page of the form entitled NEW Extension of Time.

The Division ended its commentary suggesting that water right professionals should advise their clients that cancellation of their water use permits will result if they are unable to meet the statutory requirements for approval of an extension.