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Ag in the Courtroom

RSS By: John Dillard, AgWeb.com

John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.

 

 

 

A Win for Agriculture in Tile Drain Case

Oct 10, 2013

Farm tile drains are not a point-source of pollution under the Clean Water Act, even if the outflows include groundwater. So said the federal judge presiding over a citizen’s suit that sought to require some farmers to obtain National Pollutant Discharge Elimination System (NPDES) permits for outflows from tile drains.

The case, Pacific Coast Federation of Fisherman’s Associations (PCFFA) v. Glaser, centered on the Clean Water Act’s exemption for tile drain outflows. The Act states that "return flows from irrigated agriculture" are not considered point sources of pollution. Point sources are required to have NPDES permits if they discharge into jurisdictional waters.

The plaintiffs in PCFFA argued that the exemption does not apply if the tile drain outflow includes components that are not the result of irrigated agriculture. Namely, the plaintiffs argued that tile drain outflows should not be exempt in areas with high water tables because these tile drains have a tendency to collect groundwater, which could be contaminated with pollutants.

The defendants, U.S. Bureau of Reclamation, argued that Congress intended a broad interpretation of the exemption for tile drains, and that it should apply to all tile drain outflows from areas that receive irrigation. This is consistent with EPA and US Army Corps of Engineers policy on tile drain outflows.

In this particular case, the plaintiffs were concerned about pollution in water downstream from irrigated cropland in the San Joaquin Valley of California. The fields in question had relatively high water tables and contained heavy metals, such as selenium. Tile drains, in general, are a valuable agricultural tool because they drain away surface water and prevent groundwater from saturating crop roots. In this particular case, the outflow contained not only surface irrigation water, but also selenium-contaminated groundwater. This mixture of irrigation water and groundwater then flowed downstream.

The judge sided with the federal government, and dismissed the plaintiffs’ case, holding that Congress intended for the exemption for return flows from irrigated agriculture to apply broadly to exempt outflows from farms that use irrigation instead of "focusing on what the components of a particular flow are on any given day." Although the judge dismissed the plaintiffs' case, she did allow the plaintiffs to file an amended complaint. This means that this is not the last we have heard from in this case.

This decision is, at least for the time being, a positive result for production agriculture because it confirms the proposition that owners of agricultural tile drain systems are not required to obtain an NPDES permit under the federal Clean Water Act. If the court held otherwise, untold thousands of farms would be required to obtain and comply with NPDES permits – a costly and onerous proposition.

The judge dismissed this case a little over a year after she had initially denied the federal government’s motion to dismiss. In her initial decision, the judge did not order dismissal on the basis that the plaintiff’s may have had a valid claim. We should be happy that she did not buy the activists’ arguments this time around.

The plaintiffs have submitted an amended complaint in this matter. There will surely be more fireworks as this dispute continues.

 

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA.  John focuses his practice on agricultural and environmental law.  He occasionally tweets at @DCAgLawyer.  This column is not a substitute for legal advice.

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