ONRC Action v. U.S. Bureau of Reclamation

ONRC Action v. U.S. Bureau of Reclamation, 798 F.3d 933 (9th Cir. 2015) (holding that the district court properly granted summary judgment in favor of the Bureau of Reclamation because the two water sources at issue were not “meaningfully distinct” and did not require the governmental entity to obtain a permit under the Clean Water Act).

In 2012, ONRC Action, an Oregon-based environmental group, filed a complaint in the United States District Court for the District of Oregon contending that the Bureau of Reclamation (“Bureau”) discharged pollutants from the Klamath Straits Drain (“KSD”) into the Klamath River without a permit, in violation of the Clean Water Act (“CWA”). The Bureau filed a motion for summary judgment and ONRC Action filed a cross-motion for partial summary judgment. A magistrate judge issued a report and recommendation in favor of the Bureau because of the Water Transfers Rule, which the Environmental Protection Agency (“EPA”) adopted through regulation. The district court adopted the magistrate’s report and recommendation finding summary judgment in favor of the Bureau and denying ONRC Action’s motion for partial summary judgment. ONRC Action appealed to the Ninth Circuit Court of Appeals (“Court”).

In 1905, Congress authorized the Klamath Irrigation Project (“Project”) to provide irrigation to approximately 210,000 acres of land in Oregon and California through a system of dams, pumps, drains, tunnels, and canals. The Project draws water from the Klamath River and Upper Klamath Lake, and eventually conveys the water from Lower Klamath Lake back into the Klamath River through the KSD. In the early 20th Century a natural waterway called the Klamath Straits connected the Lower Klamath Lake and the Klamath River. A local railroad severed the Klamath Straits in 1917, but the Bureau restored flow in the 1940s when it created the KSD. The KSD includes two pumping stations that keep water flowing within a certain operating range; however, the pumps are not always active. The KSD generally follows the historic pathway of the Klamath Straits, with only a slight deviation passing through marshland that acted as a historical hydrological connection between the water bodies.

To resolve whether the district court correctly granted summary judgment in favor of the Bureau, the Court looked to recent Supreme Court precedent in determining whether Lower Klamath Lake and Klamath River were “meaningfully distinct” water sources. The Court cited Los Angeles County Flood Control Dist. v. Natural Resources Defense Council (“L.A. County”), where the Supreme Court held that pumping water between different parts of a water body is not a discharge of pollutants under the CWA. The Supreme Court went on to add that a water transfer is a discharge of pollutants only if the bodies of water are “meaningfully distinct.” As a result of the Supreme Court’s holding in L.A. County, the Court did not rule on whether the Water Transfers Rule applied to the KSD discharge, nor whether the rule was within the EPA’s authority.

Finally, the Court compared the KSD-Klamath River transfer to L.A. County and South Florida Water Management District v. Miccosukee Tribe. Like the riverbed in L.A. County, the KSD is an improved version of a natural waterway that previously existed. Further, the water that the KSD transfers into the Klamath River originated in that river. The last point the Court made is that if the Bureau removed the pumps and headgates it placed in the 1940s the Klamath Straits would convey water between the Klamath River and Lower Klamath Lake, finalizing the argument that the waters are not meaningfully distinct. The Court emphasized this point because whether the CWA required the Bureau to obtain a permit turned on whether the two water bodies were meaningfully distinct.

Accordingly, the court affirmed the summary judgment in favor of the Bureau.

Featured image is of the Klamath River in California.  The image is part of the public domain.