
On Friday, September 6, recreational and commercial fishermen, biologists and conservation groups won a big victory in their efforts to clean up contaminated wastewater discharges from the San Joaquin Valley’s Grasslands Bypass Project when the Ninth Circuit Court of Appeals issued a landmark decision.
The Court unanimously reversed Federal District Judge Kimberly Mueller’s dismissal of their lawsuit against the Project, ruling that a Clean Water Act discharge permit is required for the Project despite the Act’s exemption of return flows from irrigated agriculture so long as any part of its wastewater is generated by activities unrelated to crop production, according to a statement from the Pacific Coast Federation of Fishermen’s Associations, the California Sportfishing Protection Alliance and Stephan Volker, the Lead Council for the Plaintiffs.
Other groups joining in the lawsuit include Friends of the River, the San Francisco Crab Boat Owners Association, Inc., and the Institute for Fisheries Resources. Felix Smith, the federal whistleblower biologist who exposed the Kesterson Wildlife Refuge selenium pollution scandal 37 years ago, is also a plaintiff in the litigation.
Owned and operated by the federal Bureau of Reclamation and local irrigation districts, the Project collects wastewater from 97,400 acres of farmed and unfarmed lands within California’s San Joaquin Valley.
The Project discharges substantial quantities of selenium and other pollutants into state and federal wildlife refuges and thence into the San Joaquin River, the Delta and San Francisco Bay, the groups and Volker stated.
The panel of judges that reviewed the case included Mary M. Schroeder and Milan D. Smith, Jr. Circuit Judges, and Douglas L Rayes, District Judge. Judge Milan D. Smith, Jr. wrote the opinion.
In reaching its decision, the Court issued three landmark rulings under the Clean Water Act’s exemption for discharges from irrigated agriculture, said Volker.
First, the Court held that the Defendants had the burden of establishing that their discharges were composed entirely of return flows from irrigated agriculture.
Second, the Court held that the exception was limited to