9th Weighs Pollution of Klamath Tributary

     PORTLAND, Ore. (CN) – A 9th Circuit panel considered whether a drainage canal is “meaningfully distinct” from the Klamath River in a 17-year-old Clean Water Act suit.
     The group ONRC Action brought a citizen suit against the U.S. Bureau of Reclamation in 1997, claiming the agency discharged pollutants into the Klamath River without permits.
     Much of the dispute involves the Klamath Straits Drain, an 8.5 mile drainage canal that connects the Klamath River and the Lower Klamath Lake.
     The Klamath Project uses water from the river and lake for irrigation in Southern Oregon and Northern California through a series of dams, pumps and canals.
     For decades there have been legal disputes over the project, which started in 1905.
     In 2012, a federal judge in Oregon found that the bureau’s water transfer rules should be upheld and granted summary judgment. ONRC Action appealed to the 9th Circuit.
     The arguments before the panel involved whether the Klamath Straits Drain and the Klamath River were “meaningfully distinct” based on a 2004 Supreme Court decision tackling a similar issue.
     In Miccosuke Tribe v. S. Fla Water Mgmt Dist., the high court remanded the case to the 11th Circuit to determine if two bodies of water were “meaningfully distinct” and held that a National Pollutant Discharge Elimination System (NPDES) permit may be required for transferring navigable water into another navigable water if it contained “pollutants.”
     Arguing for ONRC Action before the 9th Circuit last week, attorney William Carpenter told the three-judge panel that they should also remand the case for findings about whether the drain and the river are “meaningfully distinct.”
     “The Clean Water Act only outlaws the addition of a pollutant,” Judge Andrew Hurwitz said. “If the bodies of water aren’t meaningfully distinct, the case wouldn’t go anywhere.”
     Hurwitz asked if ONRC was deprived of the opportunity to present its case as to whether the river and its drain are “meaningfully distinct.”
     Carpenter said the factual record had not been fully developed on that issue, and needed more than just a finding that the Klamath Straits Drain was a tributary.
     “Meaningfully distinct is if you have a glass of clouded water and you have a glass of clear water,” Carpenter said. “I think it would be easy to find that those would be meaningfully distinct.”
     “Wait, wait,” Judge Milan Smith said, cutting off the attorney. “So you’re saying after a rainstorm when water gets a little cloudy, that changes the definition of whether it’s a ‘meaningfully distinct body of water?'”
     Carpenter replied that one has to consider water “when it’s at its worst” under the Clean Water Act to see when waters are meaningfully distinct.
     “How does the condition of a single glass of water speak to the origin or nature of the relationship between the two sources of the water?” Judge Richard Clifton asked, with Smith adding that he too was interested in understanding what the condition of water had to do with definition of “meaningfully distinct.”
     Carpenter used as an example the green-hued Green River flowing into the muddy Colorado River. “Everything downstream is brown,” the attorney said. “Are those meaningfully distinct? They probably are.”
     The Klamath Drain has many different characteristics that the river does not share, Carpenter said.
     Arguing for the Bureau of Reclamation, attorney David Shilton said that a “discharge” of pollutants means “addition” of them. And because the waters in question are not meaningfully distinct, the bureau did not “add” them, he said.
     As for Carpenter’s example of the Green and Colorado Rivers, Shilton said that it “implies that every tributary that comes into a main stem is going to require a NPDES permit if it’s chemically slightly different.”
     “If we were to agree with your analysis of meaningfully distinct, then there’s no reason for us to remand the case to the district court to supplement the record, correct?” Judge Smith asked.
     Shilton answered that the district court had already looked at the facts carefully.
     Arguing for intervenor Klamath Basin Water Users’ Protective Association, attorney Nick Jacobs said the Bureau of Reclamation’s summary judgment motion clearly stated that the Klamath River and the Klamath Straits Drain are not meaningfully distinct -without saying so directly.
     “In a perfect world I wish we had a single sentence in the district court opinion that simply concluded with ‘Therefore the Klamath Straits Drain and the Klamath River are not meaningfully distinct,'” Jacobs said, adding that it was the primary argument in district court, and the water transfer rule was secondary to it.
     On rebuttal, Carpenter reiterated that the district court’s record is fully developed about “meaningfully distinct” and the court should not “wander off into those uncharted waters.”
     “You’re suggesting we shouldn’t navigate those waters because they’re not navigable?” Hurwitz joked.
     “It is remarkable to me that you feel this record is so paltry,” Smith weighed in. “It was filed in 1997. This is ridiculous. I mean, come on. Thousands and thousands and thousands of pages of material in this case.”

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