ONRC Action v. United States Bureau of Reclamation

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ONRC ACTION, No. 12-35831
Plaintiff-Appellant,
D.C. No.
v. 1:97-cv-03090-
CL
UNITED STATES BUREAU OF
RECLAMATION,
Defendant-Appellee, OPINION
KLAMATH BASIN WATER USERS
ASSOCIATION; OREGON WATER
RESOURCES CONGRESS; KLAMATH
DRAINAGE DISTRICT,
Intervenor-Defendants–Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted
November 21, 2014—Portland, Oregon
Filed August 21, 2015
Before: Richard R. Clifton, Milan D. Smith, Jr.,
and Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Clifton
2 ONRC ACTION V. U.S. BUREAU OF RECLAMATION
SUMMARY*
Clean Water Act
The panel affirmed the district court’s summary judgment
in favor of the United States Bureau of Reclamation and other
defendants in a citizen suit brought by an environmental
group under the Clean Water Act, alleging defendants
violated the Act by discharging pollutants from the Klamath
Straits Drain into the Klamath River without a permit.
The Clean Water Act limits the “discharge of pollutants,”
and makes unlawful the addition from a point source of any
pollutant to navigable waters without a permit. The Klamath
River is a navigable water. The Klamath Straits Drain moves
water from Lower Klamath Lake back to the Klamath River,
and is part of the Klamath Irrigation Project operated by the
Bureau of Reclamation in parts of Oregon and California.
The panel held that because the waters flowing into the
Klamath River from the Klamath Straits Drain were not
“meaningfully distinct,” as that term was used in L.A. Cnty.
Flood Dist. v. Natural Resources Defense Council, 133 S. Ct.
710, 713 (2013) (holding that “no pollutants are ‘added’ to a
water body when water is merely transferred between
different portions of that water body”), a permit was not
required under the Clean Water Act.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ONRC ACTION V. U.S. BUREAU OF RECLAMATION 3
COUNSEL
William Charles Carpenter, Jr., Eugene, Oregon, for Plaintiff-
Appellant.
David C. Shilton (argued), Katherine J. Barton, Kent E.
Hanson, Austin David Saylor, and Robert G. Dreher, United
States Department of Justice, Environment & Natural
Resources Division, Washington, D.C., for Defendant-
Appellee United States Bureau of Reclamation.
Nicholas A. Jacobs (argued) and Paul Scott Simmons,
Somach Simmons & Dunn, Sacramento, California, for
Intervenor-Defendant–Appellee Klamath Basin Water Users
Association.
Sarah Stauffer Curtiss and David E. Filippi, Stoel Rives LLP,
Portland, Oregon, for Intervenor-Defendant–Appellee Oregon
Water Resources Congress.
Justin E. Throne, Klamath Falls, Oregon, for Intervenor-
Defendant–Appellee Klamath Drainage District.
Charlene Koski, United States Department of Justice, Office
of the United States Attorney, Seattle, Washington; and
Thomas P. Schlosser, Morisset, Schlosser, Jozwiak &
Somerville, Seattle, Washington, for Amicus Curiae Hoopa
Valley Tribe.
David G. Guest and Monica Reimer, Earthjustice,
Tallahassee, Florida; Yinet Pino, Law Offices of Bernardo
Roman III, Miami, Florida, for Amici Curiae Miccosukee
Tribe of Indians of Florida, Friends of the Everglades, and
Florida Wildlife Federation.
4 ONRC ACTION V. U.S. BUREAU OF RECLAMATION
Philip Bein, Brian Sutherland, Richard Dearing, and Barbara
Underwood, Office of the New York Attorney General,
Albany, New York; Eric Schneiderman, Attorney General of
New York, New York, New York, for Amici Curiae States of
New York, Delaware, Maine, Missouri, Washington, and
Province of Manitoba, Canada.
Roderick E. Walston, Best Best & Krieger, LLP, Walnut
Creek, California, for Amici Curiae Westlands Water District
and San Luis & Delta-Mendota Water Authority.
William Jenkins, Gavin G. McCabe, Robert W. Byrne, and
Kamala D. Harris, Office of the California Attorney General,
San Francisco, California, for Amicus Curiae State of
California.
Annette Quill, Daniel Domenico, and John Suthers, Colorado
Department of Law, Denver, Colorado; Catherine Cortez
Masto, Attorney General, Carson City, Nevada, for Amici
Curiae States of Colorado, Nevada, Alaska, Arizona, Idaho,
Kansas, Nebraska, New Mexico, North Dakota, Texas, Utah,
and Wyoming.
Peter D. Nichols, Berg Hill Greenleaf & Ruscitti LLP,
Boulder, Colorado; Don Baur and Paul Smyth, Perkins Coie
LLP, Washington, D.C., for Amici Curiae Western Urban
Water Coalition; National Water Resources Association; The
Metropolitan Water District of Southern California; The San
Diego County Water Authority; The City and County of San
Francisco Public Utilities Commission; The [California] State
Water Contractors; The Eldorado Irrigation District; The
Central Arizona Water Conservation District; the [Arizona]
Salt River Project; The Metropolitan Water District, of Salt
Lake & Sandy [Utah]; The Las Vegas Valley Water District;
ONRC ACTION V. U.S. BUREAU OF RECLAMATION 5
The Idaho Water Users Association; The City of Aurora
[Colorado]; The City of Boulder [Colorado]; The City of
Colorado Springs, acting by and through its enterprise
Colorado Springs Utilities; The City and County of Denver,
acting by and through its Board of Water Commissioners;
The Lower Arkansas Valley [Colorado] Water Conservancy
District; The Central Utah Water Conservancy District; The
Washington County [Utah] Water District; The Southeastern
Colorado Water Conservancy District; The Kane County
[Utah] Water Conservancy District; The Imperial Irrigation
District [California]; The Rio Grande Water Conservation
District; and The Republican River Water Conservation
District.
OPINION
CLIFTON, Circuit Judge:
This appeal presents the question of whether the Bureau
of Reclamation has violated the Clean Water Act by
discharging pollutants from the Klamath Straits Drain into the
Klamath River without a permit. The Klamath Straits Drain
is part of the Klamath Irrigation Project operated by the
Bureau in parts of Oregon and California. Based on the
factual record, we conclude that the waters transferred via the
Drain to the Klamath River are not “meaningfully distinct”
from the waters of the river itself, as that term was used in
Los Angeles County Flood Control Dist. v. Natural Resources
Defense Council, ___ U.S. ___, 133 S. Ct. 710, 713 (2013),
and South Florida Water Mgmt. Dist. v. Miccosukee Tribe,
541 U.S. 95, 112 (2004). As a result, no permit is required.
We affirm the judgment of the district court.
6 ONRC ACTION V. U.S. BUREAU OF RECLAMATION
I. Background
The Klamath Irrigation Project (“the Project”) was
authorized by Congress in 1905. Act of February 9, 1905, ch.
567, 33 Stat. 714 (codified at 43 U.S.C. § 601). It covers
territory in Oregon and California, providing irrigation
services to about 210,000 acres of land through a complex
system of dams, pumping plants, canals, laterals, tunnels, and
drains. The Project service area also encompasses four
wildlife refuges: the Lower Klamath Refuge, Tule Lake
Refuge, Clear Lake Refuge, and Upper Klamath Refuge.
The Project initially draws water from the Klamath River
and Upper Klamath Lake. A series of conveyances provides
the water for use on the surrounding land and connects it with
the waters of the Lost River Basin, which prior to the Project
was a separate water system. From there, the waters and
additional runoff are conveyed via a tunnel through the
mountain into Lower Klamath Lake. The Klamath Straits
Drain moves water from Lower Klamath Lake back to the
Klamath River.
Before the engineering of the Project, Lower Klamath
Lake and the Klamath River were connected by the Klamath
Straits. Generally, water would flow in the spring from the
Klamath River through the Straits and into Lower Klamath
Lake. The flood waters would eventually recede and reduce
the flood marshes around Lower Klamath Lake back to their
original size. The Straits thus served to connect the River and
Lake.
For a period of time early in the 20th Century, that link
was severed. In 1909, a railroad company built an
embankment across the Klamath Straits. The embankment
ONRC ACTION V. U.S. BUREAU OF RECLAMATION 7
included headgates that, if closed, would block the natural
flow through the Straits. Starting in 1915, settlers in the area
pushed for closure of the headgates in order to drain their
lands. Their lobbying effort succeeded, and in 1917 the
headgates were closed, severing the historic connection
between Lower Klamath Lake and the Klamath River.
In the 1940’s, however, the Bureau restored the link. As
noted earlier, the Project moves water from the Klamath
River and the Lost River Basin, along with runoff added
along the way, into Lower Klamath Lake. There was no
outlet for the added waters from Lower Klamath Lake, and
that lake could not contain all the extra water volume. Instead
of simply opening the headgates, the Bureau decided to
control the flow of water by making improvements that
essentially followed the historic path of the Straits. It
excavated and channelized the Straits and some of the nearby
marshland, turning it into what is now called the Klamath
Straits Drain (“KSD”).
The KSD is about 8.5 miles in length. It originates in
Lower Klamath Lake and follows a straight, channelized
path, first north and then northwest across what was once
marshland between Lower Klamath Lake and the Straits. It
eventually turns and hits the historic footprint of the Straits
1.5 miles northwest of the historic confluence between the
Straits and Lower Klamath Lake. It then essentially follows
the path of the Straits to the Klamath River.
There are two pumping stations along the route of the
KSD that keep water flowing from Lower Klamath Lake to
the Klamath River. After the water passes through the second
pumping station, it flows via gravity for two miles to the
point of confluence with the Klamath River. The pumping
8 ONRC ACTION V. U.S. BUREAU OF RECLAMATION
stations are not always active. They are used to keep the
water elevation level in the KSD within a certain operating
range.
Plaintiff ONRC Action is an environmental group based
in Oregon. It filed this action as a citizen suit under section
505(a) of the Clean Water Act, (“CWA”), 33 U.S.C.
§ 1365(a). ONRC contends that the Bureau and other
Defendants violated the CWA by discharging pollutants from
the KSD into the Klamath River without a permit.
The CWA limits the “discharge of pollutants,” a term
broadly defined by the Act to mean, in relevant part, “any
addition of any pollutant to navigable waters from any point
source.” Or. Nat. Desert Ass’n v. Dombeck (“ONDA”),
172 F.3d 1092, 1095–96 (9th Cir. 1998) (quoting 33 U.S.C.
§ 1362(12)), cert. denied, 528 U.S. 964 (1999). “Point
source” is broadly defined as “any discernible, confined and
discrete conveyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated animal feeding
operation, or vessel or other floating craft, from which
pollutants are or may be discharged.” 33 U.S.C. § 1362(14).
While the Act recognizes that nonpoint source pollution also
contributes to the degradation of water quality, it “provides
no direct mechanism to control nonpoint source pollution.”
ONDA, 172 F.3d at 1097.
The CWA makes unlawful the addition from a point
source of any pollutant to navigable waters without a permit.
33 U.S.C. § 1311(a). The Klamath River is a navigable
water. Plaintiff contended that Defendants were discharging
pollutants via the KSD into the River without a permit and
without taking the necessary steps to mitigate the discharge
ONRC ACTION V. U.S. BUREAU OF RECLAMATION 9
of pollutants as required under such a permit. Defendants
argued that a permit was not required to operate the KSD.
The Defendants filed a motion for summary judgment,
and Plaintiff filed a cross-motion for partial summary
judgment. A magistrate judge issued a Report and
Recommendation that recommended granting summary
judgment in favor of the Defendants and denying partial
summary judgment for the Plaintiff. The recommendation
was based on conclusions that the discharge of water from the
KSD to the Klamath River was exempted from the
requirement for a permit under the CWA by the Water
Transfers Rule adopted by the Environmental Protection
Agency, 40 C.F.R. § 122.3(I), and that adoption of the Rule
was properly within the EPA’s authority. The district court
adopted the Report and Recommendation and entered
summary judgment in favor of Defendants.
Plaintiff timely appealed.
II. Discussion
In reviewing a summary judgment, we apply the same
standard as the district court, determining whether there are
any genuine disputes of material facts, viewing the evidence
in the light most favorable to a nonmoving party. Olsen v.
Idaho State Bd. of Medicine, 363 F.3d 916, 922 (9th Cir.
2004). We may affirm summary judgment on any ground
supported in the record. Video Software Dealers Ass’n v.
Schwarzenegger, 556 F.3d 950, 956 (9th Cir. 2009).
After the district court entered its decision in this case, the
Supreme Court issued its opinion in Los Angeles County
Flood Control Dist. v. Natural Resources Defense Council,
10 ONRC ACTION V. U.S. BUREAU OF RECLAMATION
___ U.S. ___, 133 S. Ct. 710 (2013), providing a simpler path
to resolving this appeal.1 In that case, the Supreme Court
considered the question of whether “the flow of water out of
a concrete channel within a river rank[s] as a ‘discharge of a
pollutant’” under the CWA. Id. at 711. The Court answered
that question in the negative. It held 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,”
id. at 711, citing to its prior decision in South Florida Water
Management Dist. v. Miccosukee Tribe, 541 U.S. 95, 109–12
(2004). The L.A. County Flood Control decision
acknowledged that “storm water is often heavily polluted.”
133 S. Ct. at 712. Nonetheless, it is the addition of pollutants
from a point source that is prohibited under the CWA, and the
Court held that “no pollutants are ‘added’ to a water body
when water is merely transferred between different portions
of that water body.” Id. at 713. A water transfer counts as a
discharge of pollutants under the CWA only if the two
separate bodies of water are “meaningfully distinct water
bodies.” Id. (quoting Miccosukee, 541 U.S. at 112).
The record in this case demonstrates that the waters of the
KSD are not meaningfully distinct from those of the Klamath
River. Determining whether waters are meaningfully distinct
is a factual undertaking. See Miccosukee Tribe, 541 U.S. at
110–12.
While the facts here are not exactly like those in L.A.
County Flood Control, there are significant similarities. Like
1
As a result, we do not reach the questions of whether the discharge of
water from the KSD to the River was exempted by the Water Transfers
Rule, and whether adoption of that Rule was properly within the EPA’s
authority.
ONRC ACTION V. U.S. BUREAU OF RECLAMATION 11
the channelized riverbed in L.A. County Flood Control, the
KSD is essentially an improved version of a previously
existing natural waterway, the Straits. The KSD restored a
longstanding hydrological connection that was interrupted by
human intervention when the headgates were closed in 1917,
but that connection was restored more than 70 years ago. The
KSD generally follows the historic footprint of the Straits,
which connected Lower Klamath Lake to the Klamath River,
and where it deviates it passes through marshland that also
provided a historical hydrological connection.
In addition, as noted above, much of the water that flows
through the KSD originated from the Klamath River itself.
The general flow of water in the Project is from the Klamath
River, through the various parts of the Project, into Lower
Klamath Lake, and back to the Klamath River via the KSD.
The water is combined with other waters, notably waters from
the Lost River Basin, from spring-fed streams and
presumably from runoff like the storm water added to the
river channels involved in L.A. County Flood Control. Still,
it is evident that a substantial portion of the waters returned
to the Klamath River by the KSD initially came from the
Klamath River itself.
To be sure, the KSD is not simply a replacement for a
historical natural connection. The KSD uses two pumping
stations to maintain the water level and ensure the flow of
water into the Klamath River, although the pumps are not in
operation at all times. But there was a pump used to link
different water bodies against the flow of gravity in
Miccosukee Tribe, and that did not mean that those bodies of
water had to be considered meaningfully distinct. 541 U.S.
at 110–11.
12 ONRC ACTION V. U.S. BUREAU OF RECLAMATION
In considering whether the KSD was a navigable water
covered by the CWA, the district court found that “the
[KSD], like the Klamath Straits, creates a hydrological
connection between the Klamath River and Lower Klamath
Lake.” It went on to find that if the headgates and the pumps
were removed, it would be possible for water to flow between
the Klamath River and Lower Klamath Lake. Those waters
are not meaningfully distinct.
III. Conclusion
As the waters flowing into the Klamath River from the
KSD are not meaningfully distinct, a permit is not required
under the CWA. We affirm the summary judgment entered
by the district court in favor of Defendants.
AFFIRMED.