A federal judge in the Eastern District of California recently held that certain crop and forage operations that utilize subsurface drain tiles may be required to obtain a National Pollutant Discharge Elimination System (NPDES) permit. In Pacific Coast Federation of Fisherman’s Associations v. Glaser, the District Court denied the U.S. Bureau of Reclamation and San Luis & Delta-Mendota Water Authority’s motion to dismiss, rejecting the argument that operations that utilize drain tiles are not required to obtain NPDES permits based upon the “return flows from irrigation” exemption in the Clean Water Act (CWA).
Under the CWA and its regulations, a point source is required to obtain an NDPES permit if it discharges pollution into navigable waters, tributaries and other waters of the United States. Point sources are “discernible, confined and discrete conveyance[s]” from which pollutants are discharged — typically pipes, ditches, tunnels, conduits, and wells, and also concentrated animal feeding operations (CAFOs). In its regulations, the U.S. Environmental Protection Agency has defined “irrigation return flow” as “surface water, other than navigable waters, containing pollutants which result from the controlled application of water by any person to land used primarily for crops, forage growth, or nursery operations.” 40 C.F.R. §125.53(a)(2) (1976)(emphasis added).
An NPDES permit may saddle the permittee with costly conditions designed to reduce pollution levels. Recognizing the burden that NPDES permits could place on agricultural operators, Congress provided that “agricultural stormwater discharges and return flows from irrigated agriculture” are not point sources of pollution. Traditionally, farmers utilizing drain tiles have not been required to obtain NPDES permits.
In Pacific Coast Federation, the drain tiles served two purposes, drainage of irrigation water and groundwater. The tiles drained (surface) water applied to irrigated cropland and also prevented groundwater from saturating the root zone of irrigated crops. The groundwater in this part of California’s Central Valley contains naturally high levels of selenium, a trace mineral that can be considered a pollutant. Both the irrigation water and groundwater are carried away by the drainage tile and empty into the San Luis drain into Mud Slough, a navigable water.
The Fisherman’s Associations argued that the use of drain tiles was not exempt from NPDES permit requirements because the irrigated water contained groundwater pollutants (selenium), as well as return flows from irrigated agriculture. The Bureau and the Authority asserted that the suit should be dismissed because Congress intended to exempt all agricultural drain tile operations from obtaining NPDES permits. The District Court rejected that argument, noting that the return flow exemption “focuses expressly on surface water and noticeably omits any reference to groundwater or subsurface drainage.”
The Court’s decision can be construed as a signal that it intends to narrowly interpret what constitutes “return flows from agriculture.” On the other hand, the standards governing motions to dismiss require courts, at the early stages of a case, to “make every inference in favor of [a] plaintiff.” The Court also commented that “[o]n a fully developed record, drainage may be determined to be part of the irrigation process.”
While this litigation is in its infancy, this case could have major implications for farmers that utilize drain tiles. While many agricultural producers do not have to contend with groundwater reaching subsurface drain tiles, farmers in areas with high water tables may find themselves subject to NPDES permit requirements. Ultimately, Pacific Coast Federation stands for the dangerous proposition that a lawsuit which alleges that tiles that drain polluted groundwater mixed will not likely be subject to dismissal based upon the CWA’s irrigation return flow exemption.
The AgFDAblog.com will be monitoring this case and reporting on developments as they happen.
The District Court’s opinion is available here.