ONRC Action v. Bureau of Reclamation, No. 12-35831 (9th Cir. 2015)
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ONRC, an environmental group based in Oregon, field a citizen suit under section 505(a) of the Clean Water Act, (CWA), 33 U.S.C.1365(a), contending that the Bureau and other defendants violated the CWA by discharging pollutants from the Klamath Straits Drain (KSD) into the Klamath River without a permit. The district court granted summary judgment in favor of defendants. 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, which held that the flow of water out of a concrete channel within a river does not rank as a discharge of pollutant under the CWA. 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.” In this case, the court found that the record demonstrates that the waters of the
KSD are not meaningfully distinct from those of the Klamath River. Therefore, a permit is not required under the CWA. The court affirmed the judgment.
Court Description: 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. ONRC ACTION V. U.S. BUREAU OF RECLAMATION 3
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