ONRC Action v. Bureau of Reclamation, 798 F.3d 933 (9th Cir. 2015)
In this case, ONRC Action (ONRC) argued that the Bureau of Reclamation (BOR) violated the Clean Water Act (CWA) by discharging pollutants into the Klamath River without a permit. Defendants filed a motion for summary judgment, contending that no permit was required. In response, plaintiff filed a cross-motion for partial summary judgment. A magistrate judge issued a Report and Recommendation in favor of defendants. The district court adopted the Report and Recommendation and entered summary judgment for the defendants. The Ninth Circuit affirmed the district court’s judgment.
The Lower Klamath Lake and the Klamath River have historically been connected by the Klamath Straits. Water flowed from the Klamath River, through the Straits, and into the Lower Klamath Lake. However, in 1909, a railroad company constructed an embankment across the Klamath Straits. The embankment included headgates that, when closed, prevented the natural water connection through the Straits. In 1917, the headgates were closed, cutting off the flow of water between the Lower Klamath Lake and the Klamath River.
It became apparent that the Lower Klamath Lake could not contain the extra water once the headgates were closed. In the 1940s, the BOR sought to control the flow of water without opening the headgates. The BOR excavated and channelized the Klamath Straits and some of the nearby marshland, turning it into what is now the Klamath Straits Drain (KSD). These improvements allowed water to once again follow the historic path of the Straits.
There are two pumping stations along the KSD that regulate the water flow from the Lower Klamath Lake to the Klamath River. While the pumping stations are not always in operation, they are used to keep the water elevation level in the KSD within a certain operating range. The KSD is part of the Klamath Irrigation Project, which provides irrigation services to about 210,000 acres of land in Oregon and California.
The CWA limits the “discharge of pollutants,” including “any addition of any pollutant to navigable waters from any point source.” A “point source” includes a broad range of “discernible, confined and discrete conveyance[s] . . . from which pollutants are or may be discharged.” The addition of any pollutant from a point source to navigable waters is unlawful without a permit. ONRC argued that the BOR was discharging pollutants via the KSD into the Klamath River, a navigable water.
The Ninth Circuit referred to the Supreme Court opinion in Los Angeles County Flood Control District v. Natural Resources Defense Council (L.A. County Flood Control), to resolve the appeal. L.A. County Flood Control was decided after the district court’s opinion in this case. In L.A. County Flood Control, the Supreme Court held that “the flow of water out of a concrete channel within a river” was not a “discharge of a pollutant” under the CWA. The Court reasoned 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.” Rather, the CWA prohibits the addition of pollutants, and “no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body.” A water transfer is only considered a discharge of pollutants when the two separate bodies of water are “meaningfully distinct water bodies.”
The question presented in ONRC Action was whether waters of the KSD were “meaningfully distinct” from waters of the Klamath River. In this case, the natural hydrological connection between the Lower Klamath Lake and the Klamath River was disconnected only because of human intervention. But because of the KSD, which follows the general historic path of the Straits, the hydrological connection was restored more than seventy years prior to ONRC’s suit. Furthermore, much of the waters returned to the Klamath River by the KSD initially came from the Klamath River itself. For these reasons, the Ninth Circuit concluded that the waters were not distinct and determined that the KSD was “essentially an improved version of a previously existing natural waterway, the Straits.”
The Ninth Circuit clarified that the KSD is not simply a substitute to a historic natural connection, but it nevertheless constituted a hydrological connection. The KSD uses two pumping stations to create a hydrological connection, but the need for these pumping stations did not necessarily make the Klamath River and Lower Klamath Lake meaningfully distinct. The court pointed to South Florida Water Management District v. Miccosukee Tribe, where the use of pumps to link different water bodies against the flow of gravity did not necessarily make the bodies meaningfully distinct under the CWA. The Ninth Circuit deferred to the district court’s finding that the KSD creates a hydrological connection between the Klamath River and Lower Klamath Lake. Therefore, those waters were not meaningfully distinct and a permit was not required under the CWA.
In conclusion, the Ninth Circuit held that the KSD restored a longstanding hydrological connection between the Klamath River and Lower Klamath Lake. Because of this hydrological connection, the two water bodies were not meaningfully distinct. Thus, no permit was required under the CWA to operate the KSD. The Ninth Circuit affirmed the motion for summary judgment in favor of defendants.
- ONRC Action is an environmental group based in Oregon.↵
- Intervenor-defendant-appellees included the Klamath Basin Water Users Association, Oregon Water Resources Congress, and Klamath Drainage District.↵
- Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1387 (2012).↵
- Id. § 1362(12).↵
- Id. § 1362(14).↵
- Id. § 1311(a).↵
- 133 S. Ct. 710 (2013).↵
- Id. at 711.↵
- Id. at 713.↵
- Id. (citing S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 112 (2004)).↵
- Id. at 713.↵
- ONRC Action v. Bureau of Reclamation, 798 F.3d 933, 938 (9th Cir. 2015).↵
- 541 U.S. at 110–12.↵