9th Cir. Clears Feds of Polluting Klamath River

PORTLAND (CN) - Federal regulators didn't need a permit to discharge pollutants into an irrigation drain because its water is not "meaningfully distinct" from the river it empties into, the Ninth Circuit ruled Friday.

ONRC Action, an Oregon environmental group, claimed that the U.S. Bureau of Reclamation violated the Clean Water Act by discharging the pollutants from the Klamath Straits Drain into the Klamath River without a permit.

The drain - 8.5 miles in length - is part of the Klamath Irrigation Project, which was authorized by Congress in 1905 and covers territory in Oregon and California to provide irrigation services to about 210,000 acres of land, according to the panel's opinion.

Adding pollutants from a point source to navigable waters without a permit is illegal under the CWA. The environmentalists argued that because the Klamath River is navigable water, the government should be held responsible for mitigating its pollution.

A federal judge found for the government after a magistrate judge determined discharges from the drain into the Klamath River were exempted from the permit requirement because of the Environmental Protection Agency's water-transfer rule.

On Friday, a three-judge panel of the Ninth Circuit agreed, finding that the relationship between the drain and the river are not "meaningfully distinct" as laid out by the Supreme Court case Los Angeles County Flood Control Dist. v. Natural Resources Defense Council.

Circuit Judge Richard Clifton wrote that, according to that decision, a water transfer counts as a discharge of pollutants under the CWA only if the two bodies of water are "meaningfully distinct water bodies."

He said that the drain is "essentially an improved version of a previously existing natural waterway, the Straits."

Clifton admitted that "to be sure, the drain is not simply a replacement for a historical natural connection," but said that since much of the water that flows through the Klamath Straits Drain originated from the Klamath River itself the two water bodies do not meet that requirement.

Neither side immediately responded to request for comment on Friday.

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