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

by Perkins Coie
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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.

Background

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.

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