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Citizen Suit Goes Down The Drain in Farm Tile Case [1]

['Kyla S. Kaplan', 'Stewart D. Fried', 'Elliot Belilos', 'Joi Jackson', 'Dr. Nina V. Federoff']

Date: 2013-10-16 15:08:52-05:00

Farm tile drains are not a point-source of pollution under the Clean Water Act, even if the outflows contain contaminated groundwater. So ruled Judge Kimberly J. Mueller of the U.S. District Court for the Eastern District of California in dismissing a citizen suit that sought to require some farmers to obtain National Pollutant Discharge Elimination System (NPDES) permits for outflows from tile drains.

The Court’s decision in Pacific Coast Federation of Fisherman’s Associations (PCFFA) v. Glaser, centered on the Clean Water Act’s (CWA) exemption for tile drain outflows. Judge Mueller concluded that Congress, in enacting the CWA, clearly intended that “return flows from irrigated agriculture” are not point sources of pollution. Point sources are required to have NPDES permits if they discharge into jurisdictional waters.

The plaintiffs in PCFFA argued that the exemption does not apply if tile drain outflows include components that are not the result of irrigated agriculture. The plaintiffs contended that tile drain outflows should not be exempt in areas with high water tables because of their tendency to collect groundwater, which could be contaminated with pollutants.

The federal defendants, U.S. Bureau of Reclamation and its regional director, argued that Congress intended a broad interpretation of the tile drains exemption, and that it should apply to all tile drain outflows from areas that receive irrigation. This position is also consistent with EPA and US Army Corps of Engineers policies on tile drain outflows.

In this case, the plaintiffs complained about pollution in water downstream from irrigated cropland in the San Joaquin Valley of California. The fields in question had relatively high water tables and contained heavy metals, such as selenium. Tile drains, in general, are a valuable agricultural tool because they drain surface water and prevent groundwater from saturating crop roots. Here, the outflow contained not only surface irrigation water, but also selenium-contaminated groundwater. This mixture of irrigation water and groundwater then flowed downstream.

Judge Mueller sided with the federal government, holding that Congress intended for the exemption for return flows from irrigated agriculture to apply broadly to exempt outflows from farms that use irrigation instead of “focusing on what the components of a particular flow are on any given day.” Under Judge Mueller’s reasoning, if a tile drainage system serves only irrigated cropland, it is not a point source.

This decision is a positive result for production agriculture because it confirms the proposition that owners of agricultural tile drain systems are not required to obtain an NPDES permit under the federal Clean Water Act. If the court held otherwise, thousands of farms would likely be required to obtain and comply with NPDES permits – a costly and onerous proposition.

Although the Court sided with the federal defendants and included favorable language in the opinion, Judge Mueller dismissed the plaintiffs’ complaint on the basis that they only plead facts based upon outflows from irrigated fields which are exempt from NPDES requirements. The Court, however, granted the Plaintiffs leave to file an Amended Complaint; not surprisingly, they did, alleging that a substantial portion of the tile drain outflows originate from water sources that are unrelated to irrigated crop production. How the Court will address that narrow factual issue remains unclear. The decision will likely turn on whether the plaintiffs can prove that the tile drain system services and receives pollutants from non-cropland uses.

We will keep you updated on new developments in this case as they occur.

The order dismissing the PCFFA case can be found here.

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[1] Url: https://ofwlaw.com/citizen-suit-goes-down-the-drain-in-farm-tile-case/

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