Pacific Coast Federation of Fishermen's Associations; California Sportfishing Protection Alliance; Friends of the River; San Francisco Crab Boat Owners Association, Inc.; The Institute for Fisheries Resources; Felix Smith, Plaintiffs-Appellants,
Donald R. Glaser, Regional Director of the U.S. Bureau of Reclamation; United States Bureau of Reclamation; San Luis & Delta Mendota Water Authority, Defendants-Appellees.
and Submitted June 10, 2019 San Francisco, California
from the United States District Court, No.
2:11-cv-02980-KJM-CKD for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Stephan C. Volker (argued), Alexis E. Krieg, Stephanie L.
Clarke, and Jamey M.B. Volker, Law Offices of Stephan C.
Volker, Berkeley, California, for Plaintiffs-Appellants.
C. Toth (argued) and Martin F. McDermott, Attorneys; Eric
Grant, Deputy Assistant Attorney General; Jeffrey H. Wood,
Acting Assistant Attorney General; United States Department
of Justice, Environment & Natural Resources Division,
Washington, D.C.; Amy L. Aufdemberge, Office of the
Solicitor, Department of the Interior, Washington, D.C., for
Defendants-Appellees Donald R. Glaser and United States
Bureau of Reclamation. Eric J. Buescher (argued), and Joseph
W. Cotchett, Cotchett Pitre & McCarthy LLP, Burlingame,
California; Diane V. Rathmann, Linneman Law LLP, Dos Palos,
California; for Defendant-Appellee San Luis & Delta
Mendota Water Authority.
Before: MARY M. SCHROEDER and MILAN D. SMITH, JR., Circuit
Judges, and DOUGLAS L. RAYES, [*] District Judge.
panel reversed the district court's judgment in an action
alleging that the drainage system managed by the U.S. Bureau
of Reclamation and the San Luis & Delta Mendota Water
Authority discharged pollutants into surrounding waters in
violation of the Clean Water Act, 33 U.S.C. §§
Central Valley Project is a federal water management project.
The Grasslands Bypass Project, jointly administered by the
defendants, is a tile drainage system that consists of a
network of perforated drain laterals underlying farmlands in
California's Central Valley that catch irrigated water
and direct it to surrounding waters.
Clean Water Act generally requires that government agencies
obtain a National Pollutant Discharge Elimination System
permit before discharging pollutants from any point source
into navigable waters of the United States. There is an
exception to that permitting requirement "for discharges
composed entirely of return flows from irrigated
agriculture." 33 U.S.C. § 1342(1)(1).
panel held that the district court properly interpreted
"discharges . . . from irrigated agriculture," as
used in § 1342(1)(1), to mean discharges from activities
related to crop production. The panel held that the district
court ought to have begun its analysis with the statutory
text, but its reliance on legislative history to construe
this portion of the statute was not erroneous. The panel
further held, however, that the district court erred by
interpreting "entirely" to mean
"majority," and by placing the burden on plaintiffs
to demonstrate that the discharges were not covered under
§ 1342(1)(1), rather than placing the burden on
defendants to demonstrate that the discharges were covered
under § 1342(1)(1). The panel concluded that the
district court's erroneous interpretation of the word
"entirely" was the but-for cause of the dismissal
of plaintiffs' Vega claim (concerning groundwater
discharges from lands underlying a solar product), and the
panel therefore reversed the district court's dismissal
of that claim. The panel further concluded that the district
court's dismissal of plaintiffs' other claims was
also erroneous, reversed the dismissal of those claims, and
remanded for the district court to reconsider them under the
correct interpretation of § 1342(1)(1).
panel held that the district court erred by striking
plaintiffs' seepage and sediment theories of liability
from plaintiffs' motion for summary judgment because the
first amended complaint encompassed those claims.
D. SMITH, JR., JUDGE.
Central Valley features some of the most fertile agricultural
land in the United States, but it typically receives less
rainfall than necessary to cultivate the crops grown in the
Valley. To help address this problem, the federal government
has constructed and managed several irrigation and drainage
a group of commercial fishermen, recreationists, biologists,
and conservation organizations, sued Defendants Donald
Glaser, the United States Bureau of Reclamation, and the San
Luis & Delta Mendota Water Authority, alleging that the
drainage system managed by Defendants discharges pollutants
into surrounding waters, in violation of the Clean Water Act
(CWA), 33 U.S.C. §§ 1251-1387. Plaintiffs appeal
several rulings by the district court in favor of Defendants
that ultimately led to the stipulated dismissal of
Plaintiffs' single claim remaining for trial. We reverse
AND PROCEDURAL BACKGROUND
"the largest federal water management project in the
United States," the Central Valley Project (CVP)
"provides the water that is essential to [the California
Central Valley's] unparalleled productivity."
Cent. Delta Water Agency v. United States, 306 F.3d
938, 943 (9th Cir. 2002). Among other functions, the CVP
"transfer[s] water from the Sacramento River to
water-deficient areas in the San Joaquin Valley and from the
San Joaquin River to the southern regions of the Central
Valley." San Luis & Delta-Mendota Water Auth. v.
Jewell, 747 F.3d 581, 594 (9th Cir. 2014).
water project that brings fresh water to an agricultural area
must take the salty water remaining after the crops have been
irrigated away from the service area." Firebaugh
Canal Co. v. United States, 203 F.3d 568, 571 (9th Cir.
2000). Otherwise, irrigating the selenium and salt-rich soils
causes pollutants to leach into groundwater. The Grasslands
Bypass Project (the Project), jointly administered by
Defendants, was created for this purpose. The Project is
"a tile drainage system that consists of a network of
perforated drain laterals underlying farmlands in
California's Central Valley that catch irrigated water
and direct it to" surrounding waters. The map below
depicts the Project's location:
Project includes the San Luis Drain (the Drain), labeled on
the map above, which is designed to collect and convey
contaminated groundwater from lands adjacent to and upstream
of the Drain to Mud Slough. As both parties acknowledge, the
Drain discharges substantial quantities of selenium and ...