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Pacific Coast Federation of Fishermen's Ass'ns v. Murillo

ELR Citation: 44 ELR 20077
Nos. S-2:11-2980, (E.D. Cal., 03/27/2014) (Mueller, J.)

A district court held that plaintiffs may go forward with their CWA citizen suit against the U.S. Bureau of Reclamation and a California water authority in a case involving the need for a NPDES permit for an irrigation project jointly administered by the two agencies. The plaintiffs pled sufficient facts to state a claim for a violation of the CWA. The agencies claimed that the irrigation project is exempt from the NPDES permit requirement because it is covered by the "return flows from irrigated agriculture" exemption. But the plaintiffs alleged that the project discharges a substantial quantity of contaminated groundwater originating in parcels where no farming occurs because these parcels are fallow or have been retired from agricultural use. At this stage in the litigation, the court must therefore infer that the project’s discharges are not composed "entirely of return flows from irrigated agriculture" because they contain additional discharges from polluted groundwater originating from retired land that no longer supports irrigated agriculture. The exemption does not cover these resulting commingled discharges because it is plausible that discharges from retired land, which no longer supports irrigated agriculture, are not related to crop production. The court rejected the agencies' argument that applicability of the exemption turns on what activity causes the discharge. But it dismissed the plaintiffs' remaining allegations because they failed to state a plausible claim for relief. The agencies' motions to dismiss were therefore granted in part and denied in part.