The Ninth Circuit Holds Transfer of Water in Klamath River Basin Does Not Require Clean Water Act NPDES Permit

by Perkins Coie

On August 21, 2015, the Ninth Circuit Court of Appeals affirmed an Oregon district court’s ruling that a Clean Water Act National Pollutant Discharge Elimination System permit is not required for the discharge of water from one water body to another. ONRC Action v. U.S. Bureau of Reclamation, No. 12-35831 (9th Cir. Aug. 21, 2015). Specifically, the court held that no NPDES permit is required for the transfer of water from the Klamath Straits Drain into the Klamath River, based on the finding that the two water bodies are not “meaningfully distinct.” Notably, the Ninth Circuit declined the opportunity to issue a broader ruling on the validity of EPA’s controversial Water Transfer Rule, which establishes that no NPDES permit is required for the transfer of water from one water of the United States to another as long as the transferred water does not undergo an intervening industrial, municipal or commercial use.


The Klamath Straits Drain was built by the Bureau of Reclamation in the 1940s as part of the Klamath Irrigation Project. The project draws water from the Klamath River, Upper Klamath Lake and an entirely separate water basin, the Lost River Basin. This water is used for irrigation purposes and then conveyed to Lower Klamath Lake. From Lower Klamath Lake, the Klamath Straits Drain channels the water back into the Klamath River.

The plaintiff, ONRC Action, filed a Clean Water Act citizen suit claiming that the Bureau of Reclamation was required to obtain an NPDES permit to transfer water through the Klamath Straits Drain into the Klamath River. The district court ruled that the transfer did not require an NPDES permit and in doing so upheld EPA’s Water Transfer Rule as a valid exercise of EPA’s authority. ONRC Action appealed this decision to the Ninth Circuit.

The Ninth Circuit’s Decision

The Ninth Circuit held the transfer of water between the two water bodies at issue does not require an NPDES permit. In reaching this decision, the Ninth Circuit did not rule on the validity on EPA’s Water Transfer Rule. Rather, the court relied on the U.S. Supreme Court’s recent decision in Los Angeles County Flood Control District v. Natural Resources Defense Council, 133 S. Ct. 710, 711 (2013). In that case, the U.S. Supreme Court held a transfer of water between two parts of the same waterbody does not require an NPDES permit because it is not a “discharge of pollutants.” Rather, two water bodies must be “meaningfully distinct” for such a discharge to occur.

In its determination that the Klamath Straits Drain and the Klamath River are not meaningfully distinct water bodies, the Ninth Circuit relied on two factors. First, the court found that the Klamath Straits Drain restored a historical hydrological connection between Lower Klamath Lake and the Klamath River. Second, the court explained that “a substantial portion” of the water flowing through the Klamath Straits Drain into the Klamath River was originally diverted from the Klamath River itself.

The fact that a portion of the water that the Klamath Straits Drain empties into the Klamath River is from a separate water basin did not negate the court’s conclusion that the two water bodies are not meaningfully distinct. Further, citing the U.S. Supreme Court’s decision in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), the court noted it was inconsequential that pumping stations are required to ensure that the water from the Klamath Straits Drain reaches the Klamath River.

Potential Impacts of the Ninth Circuit’s Decision and the Fate of the Water Transfer Rule

Even though the Ninth Circuit did not rule on the validity of the Water Transfer Rule, its decision is still important. The court’s interpretation of the U.S. Supreme Court’s decisions in Los Angeles County and Miccosukee sheds further light on what factors courts will find dispositive when applying the meaningfully distinct test.

Meanwhile, the validity of the Water Transfer Rule is still the subject of extensive litigation. This debate will likely end up in the U.S. Supreme Court in the near future. In the event the Water Transfer Rule is ultimately declared invalid, water transfers between meaningfully distinct water bodies will require NPDES permits. Yet, water transfers that occur within the same water body will still be exempt from NPDES permitting requirements. Therefore, the meaningfully distinct test may take on increased importance as litigation over the Water Transfer Rule progresses.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Perkins Coie | Attorney Advertising

Written by:

Perkins Coie

Perkins Coie on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.