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

ELR Citation: 49 ELR 20152
Nos. 17-17130, (9th Cir., 09/06/2019)

The Ninth Circuit reversed the dismissal of a lawsuit concerning a tile drainage system in the San Joaquin Valley that discharged agricultural drainage into navigable waters without an NPDES permit. Fishermen and conservation groups argued the district court erred by placing the burden on them of proving that the drain's discharges were not exempt from CWA permitting requirements. The court agreed, finding that the operators of the drain, not the groups, bore the burden of establishing that the drain's discharges were exempt from the requirements. The groups next argued the district court erred in interpreting what constituted "irrigated agriculture" when it held that all discharges from the drain were exempted so long as they were not generated by activities unrelated to crop production. The court disagreed, finding that Congress intended the exemption for irrigated agriculture to be defined broadly and to include discharges from all activities related to crop production. Lastly, the groups argued the district court misconstrued the meaning of "entirely" when it held that the CWA exempted discharges unless most of the discharge was unrelated to crop production. The court agreed, finding that Congress intended for discharges that included return flows from activities unrelated to crop production to be excluded from the CWA exception, thus requiring an NPDES permit. It therefore reversed the dismissal and remanded to the district court for reconsideration.