Water Suppliers will go with 9th Circ. Flow on CWA Reading
In ONRC Action v. U.S. Bureau of Reclamation, the Ninth Circuit held that the bureau was not required to secure a National Pollutant Discharge Elimination System permit under the Clean Water Act in order to transfer water from Lower Klamath Lake to the Klamath River through the Klamath Straits Drain. The court reasoned that because waters flowing into the Klamath River from the drain were not meaningfully distinct, plaintiffs could not establish that the movement of those waters amounted to the addition from a point source of a pollutant to navigable waters. The well-reasoned decision of the Ninth Circuit delimits one facet of the broad prohibition on unpermitted discharges established in Section 402 of the Clean Water Act.
Background on the Klamath River and Klamath Straits Drain
The Klamath River and the Klamath Straits Drain (KSD) are part of the Klamath Irrigation Project, which provides irrigation services to areas in southern Oregon and Northern California. The project draws in water at the Klamath River and Upper Klamath Lake. That water is transferred for use on the surrounding land and connects with the Lost River Basin waters. The combined water and runoff from those areas then moves through a mountain tunnel to Lower Klamath Lake. From Lower Klamath Lake, the KSD takes the combined water back to the Klamath River.
Historically, the Klamath Straits (distinct from the KSD) connected the Klamath River with Lower Klamath Lake. In the spring, overflow from the Klamath River would traverse the Klamath Straits and enter Lower Klamath Lake. When the waters would recede, they would reveal flood marshes surrounding Lower Klamath Lake.
In the early 1900s, the Klamath Straits were closed off, thereby severing the connection between the Klamath River and Lower Klamath Lake. However, in the 1940s (long before the modern Clean Water Act was signed into law in 1972), to provide an outlet for the waters collected in Lower Klamath Lake from the Klamath Irrigation Project, the Bureau of Reclamation excavated and channelized the [Klamath] Straits and some of the nearby marshland to create the KSD. With the KSD, the waters from Lower Klamath Lake flow to the Klamath River. Two pumping stations along the KSD work to maintain required water elevation in the KSD and, when needed, to keep water flowing from Lower Klamath Lake to the Klamath River.
Lawsuit and District Court Decision
Plaintiff ONRC Action, an Oregon-based environmental group, brought action against the Bureau of Reclamation and others, alleging that the defendants violated the Clean Water Act by discharging pollutants from the KSD into the Klamath River without the requisite permit. 33 U.S.C. § 1365(a). The Clean Water Act prohibits the nonpermitted addition of any pollutant to navigable waters from any point source. 33 U.S.C. §§ 1311(a), 1362(12).
The federal district court granted the defendants motion for summary judgment because it found that the discharge of water from the KSD to the Klamath River was exempted from the Clean Water Act's permit requirement by the Water Transfers Rule adopted by the Environmental Protection Agency, affirming the U.S. Environmental Protection Agency acted lawfully when it promulgated the rule.
Ninth Circuit Ruling
The Ninth Circuit affirmed the district court’s holding, but on different grounds. In light of two decisions by the U.S. Supreme Court concerning alleged Clean Water Act violations from water transferred between two apparently different bodies of water, the Ninth Circuit focused on the structure of the Klamath Irrigation Project and the hydrologic connection between the Klamath River, KSD and Lower Klamath Lake.
In Los Angeles County Flood Control District v. Natural Resources Defense Council, 133 S. Ct. 710, 711 (2013), the Supreme Court concluded that pumping polluted water from one part of a water body into another part of the same body is not discharge of pollutants under the CWA because no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body, id. at 713. The Supreme Court relied on its prior decision in South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95, 111-12 (2004), which held that a canal that pumped water into a wetland area may not be meaningfully distinct water bodies.
Based on those precedents, the Ninth Circuit concluded that [a] water transfer counts as a discharge of pollutants under the CWA only if the two separate bodies of water are ‘meaningfully distinct water bodies.’
Applying that standard, the Ninth Circuit found that the waters of the Straits Drain are not meaningfully distinct from those of the Klamath River. Specifically, the Ninth Circuit found that the KSD is essentially an improved version of a previously existing natural waterway, the Straits and restored a long-standing hydrological connection. It relied on the fact that the KSD followed the historic footprint of the Straits and pass[ed] through marshland that also provided historical hydrological connection between the river and lake. In addition, the Ninth Circuit found that, though other water combined into the Lower Klamath Lake, much of the water that flows through the KSD originated from the Klamath River itself. Finally, the Ninth Circuit, relying on Miccosukee Tribe, held that the use of pumping stations did not create a distinction between the KSD and the Klamath River.
The Ninth Circuit, thus, affirmed summary judgment for the defendants, holding that they did not require a permit under the Clean Water Act because the Klamath River and Klamath Straits Drain were not meaningfully distinct bodies of water.
In the Western United States, where movement of water across bodies of water is a commonplace necessity so that supplies can be delivered to those areas where there is the highest demand, the Ninth Circuit’s holding is likely to be welcome news among water suppliers.
Unanswered Question: Water Transfers Rule
As demonstrated by the cases, establishing that a water body is not meaningfully distinct is a fact-intensive inquiry. Here, the Ninth Circuit’s determination was based on the historical and hydrogeological connection between the KSD and the Klamath River. Yet, a court may not always find facts in support of such a connection. See Friends of the Everglades v. South Florida Water Management District (11th Cir. 2009) 570 F.3d 1210, 1217 n. 4 (noting that the district court concluded that Lake Okeechobee and the agricultural canals [from which water was pumped into the Lake] are meaningfully distinct based on 10 fact findings ... detailed at considerable length.) The Water Transfers Rule, promulgated by the EPA in 2008, would obviate such factual inquiries.
It appears that a circuit split on the validity of the Water Transfers Rule is imminent. Currently, the Eleventh Circuit, in a multidistrict litigation, determined that the Clean Water Act's language about ‘any addition to any pollutant to navigable waters from any point source,’ 33 U.S.C. § 1362(12), is ambiguous. The EPA’s regulation adopting the unitary waters theory is a reasonable, and therefore, permissible, construction of the language. Friends of the Everglades, 570 F.3d at 1228. However, the U.S. District Court for the Southern District of New York, agreed with the Eleventh Circuit that the Clean Water Act's language is ambiguous, but found that the EPA’s Water Transfers Rule was not a reasonable interpretation of that language. Catskill Mountains Chapter of Trout Unlimited Inc. v. EPA (S.D.N.Y. 2014) 8 F. Supp. 500, 524, 566. Based on the Second Circuit’s previous rejection of the unitary waters theory in cases decided prior to the codification of the Water Transfers Rule, it remains to be seen if the Second Circuit will affirm the district court or follow the deference granted the EPA by the Eleventh Circuit. If the Second Circuit stands by its prior reasoning, clarity on the issue will demand review by the Supreme Court.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 For this reason, the Ninth Circuit did not address the validity of the Water Transfers Rule. The NPDES Water Transfers Rule states that water transfers are not subject to regulation under the [NPDES] permitting program. This 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. 73 Fed.Reg. 33, 697-708 (June 13, 2008) (codified at 40 C.F.R. §122.3(i)).
 The district court in ONRC Action relied on this Eleventh Circuit precedence. ONRC Action (D. Or. Jan. 17, 2012) ([O]pinions issued by other circuit courts of appeal deciding consolidated petitions for review of agency regulations are binding outside that circuit.)