Is Tile Drainage Water Subject to Discharge Permitting and Enforcement Under the Clean Water Act?

Food and Agriculture Law  

November 2012

Food & Agriculture Law Update

Until this year, it appeared to be virtually undisputed that runoff water from farms, or in legal parlance “agricultural return flows,” were exempt from federal National Pollutant Discharge Elimination System (“NPDES”) permitting requirements under the Clean Water Act (“Act”) because the Act very clearly states:

“The [USEPA] Administrator shall not require a permit under this section for discharges composed entirely of return flows from irrigated agriculture, nor shall the Administrator directly or indirectly, require any State to require such a permit.”  (33 U.S.C. §1342(l)(1) (emphasis added); see also 40 C.F.R. §122.3(e) and (f).)

However, more recently, the scope of the agricultural return flows exception has been called into question in federal court. Citizen activist groups, including the Pacific Coast Federation of Fishermen’s Associations (“Fishermen”), have challenged the breadth of this exception in a lawsuit against the Bureau of Reclamation (“Bureau”) and the San Luis and Delta-Mendota Water Authority (“Authority”). In this case, the Fishermen alleged that the Bureau and Authority, which jointly administer the Grasslands Bypass Project (“Project”), have illegally discharged polluted waters without an NPDES permit.  The main issue raised is whether the Project’s longstanding method of utilizing a subsurface tile drainage system equates to a “point source” under the Act, subject to federal permitting and enforcement.

Surviving a motion to dismiss, this question remains open. On August 30, 2012, a federal district court found that the Project uses sub-surface, perforated tile drains under farmland in the Central Valley to catch percolating irrigation water and channel it to local waterways, namely the San Luis Drain and Mud Slough. The court additionally found that these perforated tiles catch and collect groundwater, which may be contaminated with naturally-occurring selenium and other constituents that would otherwise reach the root zone of the crops being grown. The Fishermen allege that this upwelling groundwater does not fall under the meaning of “return flows from irrigated agriculture” under sections 1342(l)(1) or 1362(14) of the Act and, therefore, the statutory exemption does not apply.

Saving a final decision for another day, the court determined that “[o]n a fully developed record, drainage may be determined to be part of the irrigation process.” However, at this point, the court determined that the benefit of the doubt must be given to the Fishermen and the case must be allowed to proceed. Without a more complete understanding of the case, the court was unable to definitively conclude whether or not the intentional drainage of contaminated groundwater could be covered by the Act’s irrigation return flows exemption.

If the Fishermen are ultimately successful (assuming the case goes to trial and does not settle), this case could greatly expand the number of NPDES permits required for agricultural discharges. If NPDES permits are eventually required, the tile drainage water would likely have to be treated or subjected to Best Management Practices (“BMPs”) designed to reduce or remove the pollutants contained therein prior to discharge.  Depending on the pollutants, the costs could make farming in high groundwater areas prohibitively expensive. Assuming farm drainage continued under a federal permit, USEPA, State and citizen enforcement of any permit non-compliance would be possible, and could subject farmers to up to $37,500 per day per violation plus extensive attorneys’ fees.  Because of the high stakes, this case, Pacific Coast Federation of Fishermen’s Associations, et al., v. Donald Glaser, et al., United States District Court for the Eastern District, Case No. CIV-S-11-2980-KJM-CKD, warrants watching closely as it proceeds to further judicial determinations and trial.

Melissa Thorme is a Partner in the Environmental Law, and Food & Agriculture Practices at Downey Brand, LLP in Sacramento, California.  Melissa focuses in the areas of water quality, wastewater, agricultural runoff, permitting, enforcement defense and agricultural law. Downey Brand has served agricultural clients throughout California since the 1920’s.  © 2012 Downey Brand, LLP.