9th Circuit Issues CWA Decision re Water Transfers on the Klamath River

The U.S. Court of Appeals for the Ninth Circuit issued a ruling Friday in the case of ONRC Action v. United States Bureau of Reclamation.  Affirming the district court, the Court of Appeals held that the transfer of water into the Klamath River by means of the Klamath Straits Drain, as part of the Klamath Irrigation Project operated by the Bureau of Reclamation (Bureau) in parts of California and Oregon, is not the discharge of pollutants into waters of the United States without a permit. 

As described by the Court of Appeals,

“The project initially draws water from the Klamath River and upper Klamath Lake.  A series of conveyances provides the water for use on the surrounding land and connects it with the waters of the Lost River Basin, which prior to the Project was a separate water system.  From there, the waters and additional runoff are conveyed via a tunnel through the mountain into Lower Klamath Lake.  The Klamath Straits Drain moves water from the Lower Klamath Lake back to the Klamath River.”

The plaintiff filed a citizen suit under the Clean Water Act (CWA), alleging that the Bureau violated the CWA by discharging pollutants from the Klamath Straits Drain without an NPDES permit.  Initially, the lower court held that this discharge was exempted from the need to obtain an National Pollutant Discharge Elimination System (NPDES)because of EPA’s “Water Transfer Rule”, 40 C.F.R. § 122.3(I).

However, the Supreme Court then decided the case of Los Angeles County Flood Control District v. National Resources Defense Council, Inc. in 2013, which provided the Court of Appeals with “a simpler path to resolving this appeal”.  In the Los Angeles County Flood Control District case, the Supreme Court ruled 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 CWA.  A water transfer triggers the NPDES requirements only if the two separate bodies of water are “meaningfully distinct water bodies”, and in this case, the court held that the record demonstrates that the waters in the Klamath Straits Drain are not meaningfully distinct from those of the Klamath River.