Pac. Coast Fed'n of Fishermen's Ass'ns v. Glaser

945 F.3d 1076

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,

v.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.

No. 17-17130

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2019 San Francisco, California

Filed September 6, 2019

Amended December 20, 2019

ORDER

The opinion filed on September 6, 2019, and reported at 937 F.3d 1191 is hereby amended as follows:

At 937 F.3d at 1196, < underlying a solar product> is replaced with < underlying a solar project>.

At 937 F.3d at 1200, < which both parties now concede was erroneous> is replaced with < which Defendants now concede was erroneous>. < Accordingly, the lack of evidence demonstrating that the discharges stemmed from activities unrelated to crop production should not have been fatal to Plaintiffs.> is replaced with < Accordingly, even if there were a lack of evidence demonstrating that the discharges stemmed from activities unrelated to crop production, it should not have been fatal to Plaintiffs.>. Additionally, < But if a "the complaint ...> is replaced with < But if "the complaint ...>.

A clean copy of the amended opinion is attached to this order.

With the foregoing amendments, the pending petitions for panel rehearing are DENIED. Dkt. Nos. 57, 62. The Grassland Water District's motion to file an amicus curiae brief is GRANTED. Dkt. 59. No further petitions for panel rehearing or rehearing en banc will be entertained.

M. SMITH, Circuit Judge:

California's 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 projects.

Plaintiffs, 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 remand.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

As "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).

"Any 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:

The 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 other pollutants into the Mud Slough, the San Joaquin River, and the Bay-Delta Estuary.

B. Procedural Background

Plaintiffs filed their initial complaint in November 2011, alleging that Defendants violated the CWA by discharging pollutants into the waters of the United States without a National Pollutant Discharge Elimination System (NPDES) permit, in violation of 33 U.S.C. § 1311(a). After the district court granted Defendants' motion to dismiss with leave to amend, Plaintiffs filed their First Amended Complaint (FAC).

Defendants then moved to dismiss the FAC. The court granted the motion as to all but one of Plaintiffs' claims. It determined that Plaintiffs had plausibly alleged facts "that, when accepted as true, suggest [that] at least some amount of the Project's discharges may be unrelated to crop production."

The parties then filed cross-motions for summary judgment. The court denied Plaintiffs' motion for summary judgment and granted in part Defendants' motion for summary judgment. The court held that three of Plaintiffs' theories of liability in their motion for summary judgment—arguments about discharges from "seepage into the [Drain] from adjacent lands, and sediments from within the [Drain]"—did not arise from the allegations in their FAC. Accordingly, the court struck those three theories of liability. The court also determined, however, that there was a genuine dispute of material fact as to whether groundwater discharges from lands underlying a solar project violated the CWA (the Vega Claim). It therefore denied Defendants' motion for summary judgment as to that claim.

Plaintiffs moved to file a second amended complaint. The court denied that motion. The court also denied Plaintiffs' motion to reconsider its order ruling on the cross-motions for summary judgment. The parties then stipulated to the dismissal of Plaintiffs' lone remaining claim "because the discharges from the Vega Solar Project property do not make up a majority of discharges from the [Project]." The district court entered judgment for Defendants.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment. Nat. Res. Def. Council, Inc. v. County of Los Angeles , 725 F.3d 1194, 1203 (9th Cir. 2013). We also review de novo "the district court's interpretation of the CWA and its implementing regulations." Olympic Forest Coal. v. Coast Seafoods Co. , 884 F.3d 901, 905 (9th Cir. 2018).

ANALYSIS

I. The District Court's Interpretation of § 1342(l)(1)

The CWA generally requires that government agencies obtain an NPDES permit before discharging pollutants from any point source into navigable waters of the United States.¹ 33 U.S.C. § 1323(a). There is an exception to that permitting requirement, however, "for discharges composed entirely of return flows from irrigated agriculture ...." Id. § 1342(l)(1).

The parties do not disagree that the Mud Slough, the San Joaquin River, and the Bay-Delta Estuary constitute navigable waters of the United States. They also do not dispute that the Drain "discharges substantial quantities of selenium and other pollutants." At issue then is whether the Drain's discharges required Defendants to obtain an NPDES permit, or whether the discharges were exempt from the permitting requirement pursuant to § 1342(l)(1).

Plaintiffs argue that the district court committed three errors in its interpretation of § 1342(l)(1). First, they contend that the district court erred by placing the burden of proving that the Drain's discharges were not exempt on Plaintiffs instead of requiring that Defendants prove that the Drain's discharges were exempt. Second, they argue that the court erred in interpreting what constitutes "discharges ... from irrigated agriculture" when it held that all discharges from the Drain are exempted so long as they are not generated by activities unrelated to crop production. Third, they assert that the district court erred by interpreting the word "entirely" as meaning most. We address each argument in turn.

A. Burden of Proving the Statutory Exception

In its pretrial order, the district court stated that Plaintiffs bore the burden of demonstrating that the discharges at issue were not exempt from the CWA's permitting requirement pursuant to § 1342(l)(1). Plaintiffs argue that such an interpretation of the statute was erroneous because the burden was on Defendants to prove that the discharges at issue were covered by § 1342(l)(1).

We agree. To establish a violation of the CWA, "a plaintiff must prove that defendants (1) discharged, i.e., added (2) a pollutant (3) to navigable waters (4) from (5) a point source." Comm. to Save Mokelumne River v. E. Bay Mun. Util. Dist. , 13 F.3d 305, 308 (9th Cir. 1993). After a plaintiff establishes those elements, however, the defendant carries the burden to demonstrate the applicability of a statutory exception to the CWA. See N. Cal. River Watch v. City of Healdsburg , 496 F.3d 993, 1001 (9th Cir. 2007). Because § 1342(l)(1) contains an exception to the CWA's permitting requirement, Defendants had the burden of establishing that the Project's discharges were "composed entirely of return flows from irrigated agriculture."

B. Interpretation of "Irrigated Agriculture"

The district court construed § 1342(l)(1) as exempting discharges that are related to crop production from the CWA's permitting requirement. The parties agree that, by focusing on the statute's legislative history ab initio , rather than commencing its analysis with the text, the district court's interpretive method was flawed.

"It is well settled that ‘the starting point for

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