Ninth Circuit Clarifies Clean Water Act Exemption Protecting the Operations of California Farmers

The Ninth Circuit has issued an order affirming the decision by the Eastern District of California granting summary judgment in favor of Defendants San Luis & Delta-Mendota Water Authority (“SLDMWA”), the Bureau of Reclamation, and the Grassland Water District in a citizen suit. The case is Pacific Coast Federation of Fisherman’s Ass’n et al. v. Nickels et al., Case No. 23-15599. Plaintiffs in the suit had alleged that SLDMWA’s operation of the San Luis Drain in California’s Central Valley violated the Clean Water Act. The Ninth Circuit affirmed the district court’s decision, finding that plaintiffs had failed to raise a genuine dispute of material fact as to whether the irrigated agricultural return flow exemption applied to the San Luis Drain. The panel concluded that the exemption applied because the alleged pollutants were either added to the Project via nonpoint sources or via a point source related to crop production. In doing so, it specifically rejected the plaintiff’s contention that the co-mingling of any amount of non-point source pollution from a non-agricultural source forecloses the exemption, finding that plaintiff’s position would contravene the text, purpose, and structure of the Clean Water Act and render the exemption for irrigated agriculture a dead letter.