Petition for Writ of Certiorari — California Sportfishing Protection Alliance, et al., Petitioners v. Adam Nickels, Acting Regional Director, United States Bureau of Reclamation, et al.

Supreme Court briefFeb 17, 2026

Ask Donna

What actually matters in this document.

Text

No. 25In the

Supreme Court of the United States

CALIFORNIA SPORTFISHING PROTECTION

ALLIANCE, FRIENDS OF THE RIVER,

SAN FRANCISCO CRAB BOAT OWNERS

ASSOCIATION, INC., AND FELIX SMITH,

Petitioners,

ADAM NICKELS, ACTING REGIONAL DIRECTOR

OF THE U.S. BUREAU OF RECLAMATION, U.S.

BUREAU OF RECLAMATION, SAN LUIS &

DELTA-MENDOTA WATER AUTHORITY

AND GRASSLANDS WATER DISTRICT,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Stephan C. Volker (CSB #63093)

Counsel of Record

Stephanie L. Clarke (CSB #257961)

Jamey M.B. Volker (CSB #273544)

Law Offices of Stephan C. Volker

1633 University Avenue

Berkeley, CA 94703

(510) 496-0600

svolker@volkerlaw.com

120939

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Clean Water Act exempts from

its National Pollutant Discharge Elimination System

(“NPDES”) permitting program “discharges composed

entirely of return flows from irrigated agriculture” as

the statute expressly provides (33 U.S.C. § 1342(l)(1)),

or instead exempts “irrigation return flows that do not

contain additional point source discharges from activities

unrelated to crop production,” as the Ninth Circuit

interpreted the exemption to mean in this case? (App.

21-a.)

2. Whether the Clean Water Act’s exemption from

its NPDES permitting program of “discharges composed

entirely of return flows from irrigated agriculture” (33

U.S.C. § 1342(l)(1)) exempts dispersed pollutants from

non-farm sources that are collected and commingled with

agricultural return flows before their discharge to waters

of the United States?

3. Whether this Court’s ruling that under the

NPDES permit program “a point source need not be the

original source of the pollutant; it need only convey the

pollutant to ‘navigable waters’” (South Florida Water

Management Dist. v. Miccosukee Tribe of Indians, 541

U.S. 95, 105 (2004)) applies to the Clean Water Act’s

exemption of “discharges composed entirely of return

flows from irrigated agriculture”?

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 14.1(b)(ii), Plaintiffs,

Appellants and Petitioners California Sportfishing

Protection Alliance, et al. (collectively, “Plaintiffs”) submit

the following disclosure statement.

Plaintiffs California Sportfishing Protection Alliance,

Friends of the River, and San Francisco Crab Boat Owners

Association, Inc., are non-profit organizations, and do not

have parent companies, subsidiaries, or affiliates that have

issued shares to the public in the United States or abroad.

Plaintiff Felix Smith is an individual.

iii

LIST OF RELATED PROCEEDINGS

• Pacific Coast Federation of Fishermen’s Associations,

et al., v. Ernest A. Conant, et al., No. 2:11-cv-02980DAD-CKD, U.S. District Court for the Eastern

District of California. Judgments entered Aug. 31,

2017 and Feb. 21, 2023.

• Pacific Coast Federation of Fishermen’s Associations,

et al., v. Donald R. Glaser, et al., No. 17-17130, U.S.

Court of Appeals for the Ninth Circuit. Judgment

entered Sep. 6, 2019.

• Pacific Coast Federation of Fishermen’s Associations,

et al., v. Adam Nickels, et al., No. 23-15599, U.S. Court

of Appeals for the Ninth Circuit. Judgment entered

Sep. 5, 2025.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . i

CORPORATE DISCLOSURE STATEMENT . . . . . . . ii

LIST OF RELATED PROCEEDINGS . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

CITATIONS TO THE OPINIONS AND ORDERS

BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STAT EM EN T OF T H E BA SIS FOR

JURISDICTION IN THE SUPREME COURT . . . 1

STATUTES AND REGULATIONS INVOLVED

IN THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. LEGAL BACKGROUND . . . . . . . . . . . . . . . . . . . 3

III. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . 6

A. SEEPAGE FROM NON-FARM LAND

INTO SAN LUIS DRAIN . . . . . . . . . . . . . . 9

B. D I S C H A R G E F R O M T H E

GRASSLAND BYPASS CHANNEL . . 10

Table of Contents

Page

C. S C O U R I N G O F S E D I M E N T

STORED IN SAN LUIS DRAIN . . . . . . . 10

D. THE PROJ ECT DISCH A RGES

POLLUTANTS FROM A POINT

SOURCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IV. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . 11

A. PLAINTIFFS FILED THIS CASE

IN 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. T H E D I S T R I C T C O U R T

DISMISSED IN 2017 . . . . . . . . . . . . . . . . 12

C. T H E N I N T H C I R C U I T

R E V E R S E D A N D DE C I DE D

F OU R PI VO TA L I S S U E S I N

2019 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

D. ON R E M A N D, P L A I N T I F F S

CARRIED THEIR BURDEN OF

PROOF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

E. ON REM A ND, DEFENDA N TS

FA I L E D T O C A R R Y T H EI R

BURDEN OF PROOF . . . . . . . . . . . . . . . . 14

THE DISTRICT COURT DISMISSED

AGAIN IN 2023 . . . . . . . . . . . . . . . . . . . . . . 16

Table of Contents

Page

G. THE NINTH CIRCUIT AFFIRMED

AND DISMISSED . . . . . . . . . . . . . . . . . . . 16

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . 17

II. T H E O P I N I O N I N V E N T S A N

EXTRA-STATUTORY EXEMPTION

CONTRARY TO THE CLEAN WATER

ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

III. THE OPINION CONFLICTS WITH THIS

COURT’S RULINGS . . . . . . . . . . . . . . . . . . . . . 23

IV. THE OPINION CONFLICTS WITH THE

GOVERNING EPA REGULATION . . . . . . . . 29

THE OPINION CONFLICTS WITH

THE RULINGS OF OTHER CIRCUIT

COURTS OF APPEAL . . . . . . . . . . . . . . . . . . . . 30

VI. THE OPINION SUBORDINATES THE

EXEMPTION’S PLAIN LANGUAGE

TO THE OPINION’S MISREADING OF

AN INNOCUOUS PASSAGE FROM A

SENATE REPORT . . . . . . . . . . . . . . . . . . . . . . . 31

VII. THE OPINION INVENTS A “STRAW

MAN” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E N I N T H C I R C U I T, F I L ED

SEPTEMBER 5, 2025 . . . . . . . . . . . . . . . . . . . . . . . . .1a

A PPENDI X B — J U DGMENT OF THE

UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF CALIFORNIA,

FILED FEBRUARY 21, 2023 . . . . . . . . . . . . . . . . . 31a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA,

FILED FEBRUARY 21, 2023 . . . . . . . . . . . . . . . . . 32a

APPENDIX D — ORDER OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E N I N T H C I R C U I T, F I L ED

NOVEMBER 18, 2025 . . . . . . . . . . . . . . . . . . . . . . . . 81a

APPENDIX E — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83a

APPENDIX F — REGULATIONS . . . . . . . . . . . . . . 88a

viii

TABLE OF CITED AUTHORITIES

Page

Cases

Ass’n to Protect Hammersley, Eld, & Totten

Inlets v. Taylor Res.,

299 F.3d 1007 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 4

Charboneau v. Davis,

87 F.4th 443 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 23

Committee to Save the Mokelumne River v.

East Bay Municipal Utility Dist.,

13 F.3d 305 (9th Cir. 1993)) . . . . . . . . 4, 5, 12, 21, 29-31

Connecticut Nat. Bank v Germain,

503 U.S. 249 (1992) . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

County of Maui, Hawaii v. Hawaii Wildlife Fund,

590 U.S. 165 (2020) . . . . . . . . . . . . . 4, 20, 27-29, 36, 37

Fishermen Against the Destruction of the

Environment, Inc. v. Closter Farms, Inc.,

300 F.3d 1294 (11th Cir. 2002) . . . . . . . . . . . . . . . 30, 31

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Hartford Underwriters Ins. Co. v.

Union Planters Bank, N.A.,

530 U.S. 1 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Cited Authorities

Page

Mohasco Corp. v. Silver,

447 U.S. 807 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Na Kia’i Kai v. Nakatani,

401 F.Supp.3d 1097 (D. Hawaii 2019) . . . . . . . . . . . . 40

Northern California River Watch v.

City of Healdsburg,

496 F.3d 993 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . 5, 12

Northwest Environmental Defense Center v. Brown,

640 F.3d 1063 (9th Cir. 2011); rvsd. and rem. on

other gds. sub nom. Decker v. Northwest

Environmental Defense Center,

568 U.S. 597 (2013) . . . . . . . . . . . . . . . . . . . . . . 25, 26, 38

Pacific Coast Federation of Fishermen’s

Associations v. Glaser,

937 F.3d 1191 (9th Cir. 2019) . . . . . . . . . . . . . . . . . . . 12

Pacific Coast Federation of Fishermen’s

Associations v. Glaser,

945 F.3d 1076 (9th Cir. 2019) . . . 5, 12-15, 19, 25, 31, 39

Richards v. United States,

369 U.S. 1 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Rybachek v. EPA,

904 F.2d 1276 (9th Cir. 1990) . . . . . . . . . . . . . . . . . 4, 39

Sierra Club v. El Paso Gold Mines, Inc.,

421 F.3d 1133 (10th Cir. 2005) . . . . . . . . . . . . . . . . . . 31

Cited Authorities

Page

Sierra Club v. Union Oil Co. of California,

813 F.2d 1480 (9th Cir. 1987) (vac. and rem. on other

gds. sub nom. Union Oil Co. of California v. Sierra

Club, 485 U.S. 931 (1988); reinstated, 853 F.2d 667

(9th Cir. 1988)) . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30, 39

South Florida Water Management Dist. v.

Miccosukee Tribe of Indians,

541 U.S. 95 (2004) . . . . . . . . . . . . . . 4, 20, 23, 24, 26, 27

Udall v. Tallman,

380 U.S. 1 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

U.S. v. Akers,

785 F.2d 814 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . 5

U.S. v. Hartwell,

73 U.S. 385 (1867) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

U.S. v. Deaton,

209 F.3d 331 (4th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 4

Constitution

United States Constitution, Article III

§ 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

§ 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Cited Authorities

Page

Statutes

United States Code, Title 28

§ 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

§ 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

§ 1294(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

§ 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

§ 1346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

§ 1361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

§§ 2201-2202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States Code, Title 33

§§ 1251 et seq. (“Clean Water Act”) . . . . . . 3-5, 11-14,

17, 18, 20, 24, 25,

27-30, 32, 33, 36-38, 40

§ 1251(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 40

§ 1311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

§ 1342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17

§ 1342(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 17

xii

Cited Authorities

Page

§ 1342(l)(1) . . . . . . . . . . . . . . . . . . . 2, 3, 5, 12-18, 20-22,

25-28, 30, 32-33, 36-38

§ 1362(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 32

§ 1362(12) . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 18, 32, 36

§ 1362(14) . . . . . . . . . . . . . . . . . . . . . . 2, 5, 18, 24, 32, 36

§ 1362(16) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 18, 32, 36

§ 1365(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

§ 1365(b)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Code of Federal Regulations

Title 40

Part 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 30

§ 122.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 21, 28-30

§ 122.3(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Part 123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Part 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

xiii

Cited Authorities

Page

Other Authorities

Webster’s Third New International Dictionary

44 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CITATIONS TO THE

OPINIONS AND ORDERS BELOW

The Opinion of the Court of Appeals (App. 1a-30a)

is reported at 150 F.4th 1260 (2025). The Order denying

rehearing (App. 81a-82a) is unreported. The District

Court’s Order denying Plaintiffs’ motion for summary

judgment and granting in part and denying in part

Defendants’ motions for summary judgment (App.

32a-80a) is reported at 657 F.Supp.3d 1341 (2023).

The earlier opinions of the Court of Appeals are

reported at 937 F.3d 1191 (2019) and 945 F.3d 1076

(2019) (amended on rehearing). The District Court’s

Orders denying the parties’ motions for judgment on

the pleadings, denying Plaintiffs’ motion for summary

judgment and granting in part and denying in part

Defendants’ motion for summary judgment, and denying

Plaintiffs’ motion for reconsideration are not published

in the Federal Supplement but are available at 2013

WL 5230266, 2016 WL 6648731, and 2017 WL 3421910,

respectively.

STATEMENT OF THE BASIS FOR

JURISDICTION IN THE SUPREME COURT

The Judgment of the Court of Appeals was entered

September 5, 2025. Plaintiffs timely filed their Petition

for En Banc Rehearing on October 20, 2025. Plaintiffs

timely filed this Petition for Writ of Certiorari within 90

days after the Ninth Circuit denied Plaintiffs’ Petition

for En Banc Rehearing on November 18, 2025 (App.

D). This Court has jurisdiction under the United States

Constitution, Article III, §§ 1 and 2, and 28 U.S.C.

§ 1254(1). The District Court had jurisdiction under 33

U.S.C. § 1365(a) and 28 U.S.C. §§ 1331, 1346, 1361, and

2201-2202. Plaintiffs timely appealed the District Court’s

Judgment (App. B) filed February 21, 2023 on April 19,

2023. The Court of Appeals had jurisdiction under 28

U.S.C. §§ 1291 and 1294(1) over Plaintiffs’ appeal from

the District Court’s final Judgment.

STATUTES AND REGULATIONS

INVOLVED IN THE CASE

Page(s)

STATUTES

United States Code, Title 33

§ 1251(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83a

§ 1311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85a

§ 1342(a)(1), (l)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86a

§ 1362(12), (14), (16) . . . . . . . . . . . . . . . . . . . . . . . . . . 87a

REGULATIONS

Code of Federal Regulations, Title 40

§ 122.2 definitions of “discharge,” “discharge of a

pollutant,” and “point source” . . . . . . . . . . . . . . 88a

§ 122.3(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90a

STATEMENT OF THE CASE

INTRODUCTION

Plaintiffs seek a judgment directing Defendants to

secure a discharge permit under the National Pollution

Discharge Elimination System (“NPDES”) established

by section 402 (33 U.S.C. § 1342) of the Clean Water Act

(33 U.S.C. § 1251 et seq.; “CWA” or “Act”) for the San

Luis Drain – a point source – that discharges commingled

wastewater collected by Defendants’ Grassland Bypass

Project (“Project”) from both farmed and unfarmed lands

to waters of the United States.

Defendants contend the Drain’s discharge of

wastewater collected from dispersed activities on

unfarmed lands commingled with wastewater from

irrigated farmland requires no NPDES permit because

it falls within the exemption for “discharges composed

entirely of return flows from irrigated agriculture” in

33 U.S.C. § 1342(l)(1). The District Court and the Ninth

Circuit agreed with Defendants, ruling that no permit

is required because a point source must be the original

source of the pollution, and the Drain’s commingled

pollutants from unfarmed lands were collected from

dispersed sources rather than from “point sources.” (App.

21a, 30a; App. 58a-60a, 76a-77a.)

Plaintiffs contend the Ninth Circuit erred because

the Drain is a point source and its commingled discharges

are not “composed entirely of return flows from irrigated

agriculture” as the statute expressly requires for

exemption. (33 U.S.C. § 1342(l)(1).)

II. LEGAL BACKGROUND

Congress passed the CWA in 1972 to “restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters” by replacing water quality standards

with point source effluent limitations. (33 U.S.C. § 1251(a);

County of Maui, Hawaii v. Hawaii Wildlife Fund

(“County of Maui”), 590 U.S. 165, 170-171 (2020); South

Florida Water Management Dist. v. Miccosukee Tribe of

Indians (“Miccosukee”), 541 U.S. 95, 102 (2004).) The Act

prohibits the “discharge of any pollutant by any person”

unless in compliance with the Act. (33 U.S.C. § 1311(a).)

Under the CWA, the “discharge of a pollutant” means

“any addition of any pollutant to navigable waters from

any point source.” (33 U.S.C. § 1362(12); County of Maui,

590 U.S. at 171; Miccosukee, 541 U.S. at 102.) An addition

occurs when a point source introduces a pollutant into

navigable waters that would not exist in the same form

or concentration but for the discharge. (Rybachek v. EPA,

904 F.2d 1276, 1285-1286 (9th Cir. 1990); U.S. v. Deaton,

209 F.3d 331, 335 (4th Cir. 2000).)

“A cornerstone of the Clean Water Act is that the

‘discharge of any pollutant’ from a ‘point source’ into

navigable waters of the United States is unlawful unless

the discharge is made according to the terms of an

NPDES permit obtained from either the United States

Environmental Protection Agency (‘EPA’) or from an

authorized state agency.” (Ass’n to Protect Hammersley,

Eld, & Totten Inlets v. Taylor Res., 299 F.3d 1007, 1009

(9th Cir. 2002).) The CWA thus creates a strict liability

scheme that “categorically prohibits any discharge of a

pollutant from a point source without a permit,” regardless

of whether the receiving water is unduly affected.

(Committee to Save the Mokelumne River v. East Bay

Municipal Utility Dist. (“Mokelumne”), 13 F.3d 305, 309

(9th Cir. 1993).)

“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.’” (Pacific Coast Federation of Fishermen’s

Associations v. Glaser (“Glaser”) 945 F.3d 1076, 1083 (9th

Cir. 2019) (quoting Mokelumne, 13 F.3d at 308).) As noted,

CWA section 402 requires an NPDES permit for the

discharge of pollutants from point sources into navigable

waters. (33 U.S.C. §§ 1342(a)(1), 1362(14) (defining “point

source”); 40 C.F.R. § 122.2 (defining “point source”).)

While the CWA exempts irrigated agriculture

return flows from the NPDES permit program (33

U.S.C. § 1362(14); 40 C.F.R. § 122.3(f)), it only exempts

“discharges composed entirely of return flows from

irrigated agriculture. . . .” (33 U.S.C. § 1342(l)(1) (emphasis

added).) Congress thereby declared its intent not to

exempt conveyances discharging pollutants to waters of

the United States other than those composed entirely

of return flows of water used to irrigate crops. (Id.)

“Claims of exemption, from the jurisdiction or permitting

requirements, of the CWA’s broad pollution prevention

mandate must be narrowly construed to achieve the

purposes of the CWA.” (Northern California River Watch

v. City of Healdsburg (“River Watch”), 496 F.3d 993, 1001

(9th Cir. 2007), citing U.S. v. Akers, 785 F.2d 814, 819 (9th

Cir. 1986).)

The District Court initially recognized – before its

rulings later strayed – that “[t]he exemption does not

cover . . . commingled discharges” – discharges composed

of both exempt agricultural return flows and “additional

discharges.” (Ninth Circuit First Excerpts of Record,

Volume 1, pages 100-101 (“1FER100-101”).)

III. STATEMENT OF FACTS

This case concerns Defendants’ operation of their

Grassland Bypass Project (“Project”), which is located

“in California’s Central Valley [and] jointly

adm i n ist ered by Defenda nt s-Appel lees

Adam Nickels (Acting Regional Director of

the U.S. Bureau of Reclamation), the U.S.

Bureau of Reclamation, the San Luis & DeltaMendota Water Authority (‘SLDMWA’), and

the Grassland Water District. Implemented

in 1996, the Project comprises an extensive

underground tile drainage system beneath the

Grassland Drainage Area (‘Drainage Area’),

serving 97,400 acres of land within the DeltaMendota sub-basin of the San Joaquin Valley.”

***

“This Drainage Area is composed of active,

fallow, and retired farmland as well as nonirrigable land used for public infrastructure,

residences, and businesses.”

(App. 13a-14a.)

“After the water leaves the Drainage

Area, it enters the Grassland Bypass Channel

(“Bypass”) that conveys it further into the San

Luis Drain (“Drain”). The Drain is owned by

the Bureau of Reclamation and operated by

SLDMWA. The Drain spans approximately 28

miles and was built with expansion joints and

weep valves to prevent damage to its concrete

lining from the pressure of surrounding

groundwater. Nonetheless, the Drain has

accrued some damage over time. Due to its

perforated design and accumulated damage,

surrounding groundwater seeps into the Drain.

Sediments containing concentrations of

pollutants like selenium have also accumulated

in the Drain, requiring monitoring, occasional

physical removal, and certain reductions in flow

rates. At its terminus, the Drain discharges

its contents into the Mud Slough wetland, a

navigable water of the United States, which

feeds into the San Joaquin River and lies

adjacent to numerous national- and stateprotected wildlife areas.”

(App. 15a.)

In 1996 Defendants obtained an NPDES permit

allowing operation of the Project. (Ninth Circuit Excerpts

of Record, Volume 3, pages 512-513 (“3ER512-513”).) After

it expired in 1997, Defendants failed to seek its renewal.

Consequently, since 1997, Defendants have operated the

Project without an NPDES permit. (App. 14a.)

In addition to receiving Grassland Drainage Area

(“GDA”) wastewater from the Bypass, the Drain receives

substantial wastewater from adjacent lands along its 28mile length, most of which are used for non-agricultural

purposes. (3FER603; 7FER1601, 1603.) Consequently, its

flow increases up to 31% between the Bypass and Mud

Slough. (2FER227; 2ER294-302, 305-309, 312 (map), 314

(table).)

The Drain discharges substantial quantities of

selenium, boron and other pollutants into Mud Slough.

(2FER400 (Table C-26).) These quantities are recorded by

the San Francisco Estuary Institute (“Estuary Institute”),

and show high levels of toxic selenium and boron. When

this litigation commenced in 2011, the average selenium

concentration discharged into Mud Slough was 29.8

micrograms per liter (“ug/L”), nearly 6 times higher

than the maximum 4-hour average concentration allowed

under the Regional Water Board’s Basin Plan, 5.0 ug/L.

(5FER1076 (Table III-1), 1079 (Table 2a); 10FER2318.)

Such “high concentrations of selenium” (3FER465;

10FER2326-2327; 11FER2389-2391) harm human health

and aquatic life (10FER2318).

Mud Slough is an ecologically sensitive waterway

and wetland that passes through or adjoins numerous

national and state wildlife refuges, including the San

Luis National Wildlife Refuge Complex and the Merced

National Wildlife Refuge. (2FER378-379 (Figure 7-1).)

Due to the Drain’s polluted discharges, Mud Slough has

elevated levels of salinity, selenium and boron. (2FER36.)

Its selenium levels regularly exceed applicable water

quality objectives. (2FER281.)

Contamination of Mud Slough also pollutes the San

Joaquin River downstream. “Exceedances of drinking

water standards have occurred since the Project began

either in the San Joaquin River . . . or [farther downstream]

in the Bay-Delta.” (10FER2332.) “Laboratory and field

research has demonstrated that elevated water-borne

and/or dietary concentrations of several trace elements in

the San Joaquin Valley drain waters are toxic to fish and

wildlife. Se[lenium] is the most toxic of these.” (2FER378

(quote); 10FER2332-2333.)

SEEPAGE FROM NON-FARM LAND INTO

SAN LUIS DRAIN

The Drain discharges pollutants from three primary

sources. The most direct source is contaminated

groundwater from lands through which the Drain passes.

(3FER603, 692; 4FER719; 5FER1032, 1039, 1046, 1052,

1059, 1066; 7FER1598, 1603-1605.) The vast majority of

these lands are unfarmed. (Id.; 2FER226-228; 7FER16041605; 2ER291, 298-302 (discussing 2ER279-281, 286, 307309, 312 (map), 314 (chart)); 3ER497-499.)

The quantity of pollutants entering the Drain from

these adjacent lands is determined by comparing the

volume at the Drain’s upstream end (Station A) where it

receives wastewater from the Bypass, with the volume at

Station B, 26 miles downstream and two miles upstream

from Mud Slough. (Id.) The Estuary Institute’s monthly,

quarterly and annual water quality and toxicity reports

of the pollutants collected at Stations A and B, and in Mud

Slough (2FER245; 3FER419; 4FER723-725, 5FER10321066, 11FER2391) show that the increases in the Drain’s

wastewater from seepage from adjacent lands ranged

up to 52%. (5FER1051-1054, 1039-1040.) Defendants’

modeling shows that seepage adds an additional 5,801

acre-feet of wastewater flow, 181 pounds of selenium, and

20,840 tons of salts discharged to Mud Slough each year.

(2FER396-399 (Table C-23 (flow), Table C-24 (selenium),

and Table C-25 (salt).)

To remedy the inflow of contaminated groundwater

from unfarmed lands, Reclamation has considered building

a new drain or enclosed pipeline that would “convey

only agricultural drainage and discharge it directly to

the San Joaquin River,” but did not pursue this option.

(2FER334 (Alternative 9: Construct New Channel), 335337 (Alternatives 13 and 14: Construction of Pipeline or

New Drain).) Construction of a wastewater treatment

plant was also considered and discarded. (3ER389-391.)

Consequently, the Drain continues to discharge selenium

and other pollutants collected from adjacent unfarmed

lands into Mud Slough. (Id.)

B. DISCHARGE FROM THE GRASSLAND

BYPASS CHANNEL

The Drain’s second major source of contamination is

wastewater from the Bypass, which drains both farmed

lands and unfarmed lands within the roughly 97,400 acres

of the GDA. (1FER21-44; 2FER235; 351; 5FER12116FER1377; 7FER1555, 1598-1610.)

SCOURING OF SEDIMENT STORED IN SAN

LUIS DRAIN

The Drain’s third major source of pollutants is

accumulated and highly seleniferous sediment. (5FER9801011; 7FER1605-1606 (Bond Expert Report citing

4FER696 (Estuary Institute 2012 Annual Report)).)

Some selenium deposits are nearly 8 feet deep and exceed

hazardous waste criteria. (2FER263-287, 367; 5FER9801011, 1013-1026; 7FER1604.) As of 2015, the Drain had

over 274,000 cubic yards of sediment. (4FER743.)

The Drain’s sediments “are resuspended into the

water column when water is released into the [Drain]”

from the Bypass. (7FER1598-1599, 1606 (citing expert’s

photographs showing that “sediment deposits [have] been

scoured and reworked by flowing water” and “selenium is

thereby discharged to Mud Slough and the San Joaquin

River;”); 10FER2195-2197, 2208-2213 (expert’s photos of

eroding sediment).) Mobilization of stored sediment occurs

when the Drain’s flow rises and erodes the caked sediment

as shown in the photos. (Id.; 2FER374.)

The Estuary Institute’s testing showed the average

selenium concentration in Drain sediments is two orders

of magnitude (i.e., 100 times) greater than background

soils. (4FER732-752; 7FER1605 (Bond Expert Report

(citing 5FER980 -1011, 1013-1026)).) The Institute

expressed concern regarding “excess sediment loading

and accumulation in the Drain and scour of previously

accumulated sediment from the Drain into the receiving

waters due to high water velocities.” (2FER380; 4FER696718, 753-757.)

THE PROJECT DISCHARGES POLLUTANTS

FROM A POINT SOURCE

Based on Plaintiffs’ evidence that the Project

discharged pollutants to Mud Slough, a navigable water,

without an NPDES permit, the District Court ruled that

Plaintiffs had proved a violation of the Act. (App. 52a.)

However, the court ruled the Drain’s discharges exempt

as return flows from irrigated agriculture. (App. 76a-77a.)

IV. PROCEDURAL HISTORY

PLAINTIFFS FILED THIS CASE IN 2011

On June 8, 2011, Plaintiffs gave notice under 33 U.S.C.

§ 1365(b)(1)(A) of Defendants’ ongoing CWA violations

and requested their compliance by securing an NPDES

permit. (11FER2363-2370.) After Defendants failed to

take corrective action, Plaintiffs filed suit on November

9, 2011. (11FER2396.)

B THE DISTRICT COURT DISMISSED IN 2017

In March 2017 the District Court issued a Final

Pre-Trial Order that exempted most commingled flows,

dismissed Plaintiffs’ seepage and sediment claims,

and required Plaintiffs to prove that an industrial use

comprised the majority of all the Project’s discharges.

Plaintiffs stipulated to dismissal to expedite appellate

review. Judgment for Defendants was entered on August

31, 2017. (1FER1-5.)

C. T H E N I N T H CI RCU I T REV ER SED A N D

DECIDED FOUR PIVOTAL ISSUES IN 2019.

In 2019 the Ninth Circuit reversed. (Glaser, 937 F.3d

1191 (9th Cir. 2019) (original ruling); Glaser, 945 F.3d 1076

(amended on denial of rehearing).) It decided four pivotal

issues of law. First, it reversed the District Court’s ruling

that “Plaintiffs bore the burden of demonstrating that

the discharges at issue were not exempt from the CWA’s

permitting requirement pursuant to [33 U.S.C.] § 1342(l)

(1).” (945 F.3d at 1083.) Citing Mokelumne, 13 F.3d at 308,

it held that “[a]fter a plaintiff establishes” the five elements

for requiring an NPDES permit – i.e., “that defendants

(1) discharged, i.e., added (2) a pollutant (3) to navigable

waters (4) from (5) a point source, . . . . the defendant

carries the burden to demonstrate the applicability of a

statutory exception to the CWA.” (945 F.3d at 1083, citing

River Watch, 496 F.3d at 1001.)

Second, the Court determined the meaning of the

exemption’s term “irrigated agriculture,” and adopted

the definition of agriculture in Webster’s Third New

International Dictionary 44 (2002): “‘the science or

art of cultivating the soil, harvesting crops, and raising

livestock.’” (945 F.3d at 1084.)

Third, the Court reversed the District Court’s

“holding that § 1342(l)(1) exempts discharges from the

CWA’s permitting requirement unless a ‘majority of

the total commingled discharge’ is unrelated to crop

production.” (945 F.3d at 1085.) The Court reasoned

that “[a]lthough ‘entirely’ is not defined by the statute,

we begin by considering its ‘ordinary, contemporary,

common meaning . . . . wholly, completely, fully.” (Id.,

quoting Webster’s Third New International Dictionary.)

Hence, “[t]he text demonstrates that Congress intended

for discharges that include return flows from activities

unrelated to crop production to be excluded from the

statutory exception, thus requiring an NPDES permit

for such discharges.” (Id. (emphasis added).)

Fourth, the Court reversed the District Court’s orders

striking Plaintiffs’ claims that the Project’s discharges

were not exempt because they included flows into the

Drain from nonfarm sources including “the Vega [Solar]

Project,” “discharges from highways, residences, seepage

into the [Drain] from adjacent lands, and sediments from

within the [Drain].’” (945 F.3d at 1086.) It ruled Plaintiffs

adequately “alleged that the Drain discharged ‘polluted

groundwater . . . originating from parcels where no

farming occurs,” that “the Drain picked up seepage from

non-irrigated land on its way to the Mud Slough, and

because the Drain discharged pollutants from seepage and

sediment within the Drain.” (Id. at 1087 (emphasis added).)

ON REMAND, PLAINTIFFS CARRIED

THEIR BURDEN OF PROOF

The District Court ruled that “Plaintiffs have

established a violation under the Act” by showing “the

addition of water containing pollutants stemming from

the Project being dispensed into Mud Slough without an

NPDES permit, as required.” (App. 52a.)

Plaintiffs then exceeded their burden of proof by

establishing through Defendants’ own monthly monitoring

reports and admissions by Defendants’ expert, as well as

Plaintiffs’ expert opinion based on the record evidence,

that the Project’s commingled discharges included

“‘polluted groundwater . . . originating from parcels

where no farming occurs” including where “the Drain

picked up seepage from non-irrigated land on its way to

the Mud Slough.” (Glaser, 945 F.3d at 1087; 2ER287-288,

294-302, 305-309, 312 (map), 314 (table); 3ER492-521;

2FER226-228; 7FER1598-1609.) Plaintiffs also proved the

Drain received pollutants from other non-exempt sources,

including approximately 30,000 acres of unfarmed lands

within the GDA, and seleniferous sediment stored within

the Drain. (2ER233-239 (citing 3ER494-505, 512-516),

294-302; 2FER226-228; 7FER1582-1593, 1598-1609.)

E. ON REMAND, DEFENDANTS FAILED TO

CARRY THEIR BURDEN OF PROOF

Defendants, by contrast, did not meet their burden.

They failed to show that the Project’s discharges

of pollutants from the Drain into Mud Slough were

“‘composed entirely of return f lows from irrigated

agriculture.’” (Glaser, 945 F.3d at 1085, quoting 33 U.S.C.

§ 1342(l)(1).) Their expert Mr. Ortega conceded that the

majority of the lands along the Drain’s 28-mile length

from which polluted groundwater seeps into the Drain

are not irrigated farmland. (2ER279-281, 286 (only 6 of 38

land segments’ classification disputed).) Plaintiffs’ expert,

retired Regional Water Board engineer Mr. Bond, had

shown that 87% of the lands adjacent to and draining into

the Drain were not irrigated agriculture. (2ER307-309,

312 (map), 314 (table).)

Moreover, Defendants’ own monthly reports between

September 10, 2006 and July 31, 2015 – the period relevant

to the District Court’s ruling (1ER12, citing 3ER317)

reveal that substantial quantities of contaminated

wastewater from those unfarmed – and thus, non-exempt

– lands along the Drain seep into the Drain. (3FER603,

692; 4FER719; 5FER1032, 1039, 1046, 1052, 1059, 1066;

7FER1598, 1603-1605; 3ER494, 496, 502-504, 508, 519.)

Defendants’ modeling shows contaminated seepage adds

an estimated 5,801 acre-feet per year. (2FER396-399;

3ER504-505.) That quantity of polluted water is sufficient

to inundate 640 acres – one square mile – to a depth of

9 feet (5,801 ÷ 640 = 9.064).

Because Defendants’ own reports documenting years

of discharging polluted seepage from unfarmed lands

precluded them from meeting their “burden of establishing

that the Project’s discharges were ‘composed entirely of

return flows from irrigated agriculture’” (Glaser, 945

F.3d at 1083), they invented a novel theory that Plaintiffs

must additionally prove that each of the original sources

of the Drain’s commingled waste stream must also be a

point source requiring an NPDES permit. (2ER262-263.)

THE DISTRICT COURT DISMISSED AGAIN

IN 2023

On February 21, 2023 the District Court decided the

parties’ cross-motions for summary judgment. (App. C.)

It granted summary judgment (App. B) to Defendants,

ruling: “the alleged sources of pollution are, on this

evidence of record, nonpoint sources or stem from

activities related to crop production. Therefore they are

all covered under the § 1342(l)(1) exception.” (App. C., 77a

(emphases added).)

The District Court disregarded much of Plaintiffs’

evidence on the grounds their Response to Defendant’s

Separate Statement of Facts either “fail[s] to address the

particular fact at issue,” or is entirely missing. (App. 35a,

n.2.) This is incorrect. Excepting only Plaintiffs’ objections

to several of Defendants’ “undisputed” facts as immaterial,

Plaintiffs provided extensive and specific citations and

quotations with detailed parenthetical explanations. (App.

35a, n.2; 2ER185, 189-191, 193, 197-202, 205-210, 212-213

(citing, e.g., expert testimony, independent and agency

reports, the Project Environmental Impact Report, and

other probative evidence).)

G. THE NINTH CIRCUIT AFFIRMED AND

DISMISSED

On April 19, 2023, Plaintiffs appealed the District

Court’s Judgment, and on September 5, 2025, a different

Ninth Circuit panel issued its Opinion affirming the

Judgment. (App. 1a-30a.) On October 20, 2025, Plaintiffs

filed a Petition for Rehearing En Banc, which the Court

denied on November 18, 2025. (App. 81a-82a.)

ARGUMENT

INTRODUCTION

This Court’s review is needed because the Opinion’s

rewriting of the exemption’s plain language creates

profound conflicts with the CWA, with rulings of this

Court, rulings of other Circuits, and the governing

EPA regulations. Unless corrected, the Opinion’s

misinterpretation of the exemption for discharges

composed entirely of return f lows from irrigated

agriculture will allow non-agricultural dischargers to

evade permitting under the CWA by commingling their

dispersed wastewater with farm discharges, defeating

the Act’s purposes.

II. T H E O P I N I O N I N V E N T S A N E X T R A STATUTORY EXEMPTION CONTRARY TO THE

CLEAN WATER ACT

Section 402 of the CWA establishes the NPDES permit

program, and empowers the EPA Administrator (or a

delegated state) to issue permits allowing the discharge

of pollutants from point sources to navigable waters. (33

U.S.C. § 1342.) Pursuant to 33 U.S.C. § 1342(a)(1), the

EPA Administrator promulgated detailed regulations

implementing the NPDES permit program. (40 C.F.R.

Parts 122, 123, and 124.)

Cong ress exempted from the NPDES permit

requirement “discharges composed entirely of return

flows from irrigated agriculture.” (33 U.S.C. § 1342(l)(1).)

This exemption states:

“The Administrator shall not require a permit

under this section for discharges composed

enti rely of return f lows from i r r igated

agriculture, nor shall the Administrator

directly or indirectly, require any state to

require such a permit.”

(Id.)

The Act defines this exemption’s principal terms as

follows:

• “ The ter m ‘discha rge’ when used w ithout

qualification includes a discharge of a pollutant, and

a discharge of pollutants.” (33 U.S.C. § 1362(16).)

• “The term ‘discharge of a pollutant’ and the term

‘discharge of pollutants’ each means (A) any

addition of any pollutant to navigable waters from

any point source. . . .” (33 U.S.C. § 1362(12).)

• “The term ‘point source’ means any discernible,

confined and discrete conveyance, including but

not limited to any pipe, ditch, channel . . . from

which pollutants are or may be discharged. The

term does not include agricultural stormwater

discharges and return f lows from irrigated

agriculture.” (33 U.S.C. § 1362(14).)

The plain language of section 1342(l)(1), elucidated

by the Act’s foregoing definitions, is unambiguous:

“Discharge” means the “discharge of pollutants.”

“Discharge of pollutants” means “[a]ny addition of any

pollutant to navigable waters from any point source.” (33

U.S.C. §§ 1362(16), 1362(12), and 1362(14).)

Applying these straightforward statutory definitions,

it follows that discharges from the San Luis Drain – which

all parties agree and the District Court ruled is a “point

source” – to Mud Slough are “discharges of pollutants”

to Mud Slough – which all parties agree and the District

Court ruled is a “navigable water.” That being the case,

the sole question posed here is whether the Drain’s

“discharges are composed entirely of return flows from

irrigated agriculture.” If they are, then the Judgment

below must be affirmed. But if they are not, then it must

be reversed.

Deciding this question is likewise straightforward.

The term “entirely” means, as Glaser observed, “wholly,

completely, fully.” (945 F.3d at 1085).) Applying this

definition, the question must be answered “no,” because

not all of the Drain’s discharges are “return flows from

irrigated agriculture.” It is undisputed that the Drain

collects substantial pollutants from adjacent lands along

its entire 28-mile length; both Defendants’ expert Mr.

Ortega and Plaintiffs’ expert Mr. Bond agreed that most

of those lands are unfarmed. (2ER226-228, 279-281, 286

(only 6 of 38 land segments disputed),294-302; 307-309,

312 (map), 314 (table) (87% of adjacent land not irrigated

agriculture); 3ER427, 494, 496, 508, 519; 7FER1582-1593,

1598-1609; 10FER2316-2317, 2336-2337; App. 14a (map).)

Both the District Court and the Ninth Circuit

ruled that unless the non-farm sources of the Drain’s

polluted discharges were themselves point sources, then

the Drain’s commingled discharges were exempt from

NPDES regulation. (App. 21a, 30a; App. 76a.) They did so

based on their understanding that “there must still be a

point source from which the pollutants originate.” (App.

59a (emphasis added), citing “County of Maui, 140 S.Ct. at

1177” [sic, probably 1477] [590 U.S. at 185].) Because they

misunderstood the exemption’s meaning, they ruled that

the Drain’s commingled discharges were exempt because

their pollutants from unfarmed lands did not originate

from point sources.

law.

Their rulings conflict with two controlling points of

First, under the CWA’s plain language, the Drain is a

point source. It does not matter whether it is the original

source of the pollutants, because as this Court held in

Miccosukee, “a point source need not be the original

source of the pollutant, it need only convey the pollutant

to . . . ‘waters of the United States.’” (541 U.S. at 105.)

Therefore, unless its discharges are “composed entirely

of return flows from irrigated agriculture,” the exemption

does not apply and its discharges require an NPDES

permit. (33 U.S.C. § 1342(l)(1).) Since its discharges

include pollutants from unfarmed lands that are not

“return flows from irrigated agriculture,” the exemption

does not apply and an NPDES permit is required.

Second, under the NPDES regulations, the Drain’s

discharge of dispersed, or “nonpoint,” pollutants that it

collects from adjacent unfarmed lands along its 28-mile

length triggers the NPDES permit requirement. These

regulations direct:

“Discharge of a pollutant means:

(a) Any addition of any ‘pollutant’ . . .

to ‘waters of the United States’

from any ‘point source,’

***

This definition includes additions of pollutants

into waters of the United States from: surface

runoff which is collected or channeled by

man. . . .”

(40 C.F.R. § 122.2 (“Discharge of a pollutant,” emphasis

added).) The Mokelumne Court quoted this regulation in

requiring an NPDES permit for an agency’s collection

and discharge to the Mokelumne River of polluted

surface runoff. (13 F.3d at 308.) Consequently, the Drain’s

collection and discharge of dispersed pollutants from

unfarmed lands is fully embraced within the established

NPDES permit system. Nothing in § 1342(l)(1) states that

the collection and discharge from a point source (like the

Drain) of dispersed pollutants from unfarmed lands is

exempt from the NPDES.

The Opinion’s summary of its ruling is instructive.

It stated:

“we agree with the district court in concluding

that the exemption applies to irrigation return

flows that do not contain additional point source

discharges from activities unrelated to crop

production.”

(App. 21a (emphasis added).) This ruling misstates the

language of § 1342(l)(1). This section does not state that

the exemption only excludes discharges from activities

unrelated to crop production if they are also from “point

source[s],” as the Opinion asserts. (App. 21a.)

Indeed, § 1342(l)(1) never mentions the term “point

source.” Yet the Opinion’s entire rationale for judicially

rewriting the section to expressly exclude only “point

sources” of non-farm pollution from exemption is to

achieve Congress’ supposed intent. (App. 21a-24a.)

Had Congress actually intended to exclude only “point

sources” of non-farm pollutants from the exemption –

an intent that would be contrary to the statutory and

regulatory scheme, and create a loophole since sequential

point sources are physically impossible as discussed below

– it would have adopted language saying that.

The fact that Congress did not mention the word “point

source” in § 1342(l)(1) is never addressed by the Opinion.

Yet this absent term is given controlling prominence in the

Opinion’s interpretation. Its absence would ordinarily be

deemed persuasive, if not dispositive, of Congress’ intent

not to expand the exemption in that way, for “courts must

presume that a legislature says in a statute what it means

and means in a statute what it says there.” (Connecticut

Nat. Bank v Germain (“Germain”), 503 U.S. 249, 253-254

(1992).) The Opinion’s central reliance on a term that does

not even appear in this section is fatal.

In contrast to the Opinion, section 1342(l)(1)’s actual

language uses different words with meanings different

from the absent words on which the Opinion constructs its

interpretive house of cards. The actual language of this

section exempts a class of “discharges” – not classes of

“return flows from irrigated agriculture” as the Opinion

would have it read. And, the actual language of this section

exempts only that class of “discharges” that is “composed

entirely of return flows from irrigated agriculture.” (33

U.S.C. § 1342(l)(1).)

The discharges at issue in this case that the Opinion

asserts are exempted are demonstrably not “composed

entirely of return flows from irrigated agriculture.” As

discussed, the vast majority of the polluted water that the

Drain collects along its 28-mile length and then discharges

into Mud Slough is from unfarmed lands, as Plaintiffs’

expert Mr. Bond proved (2ER298; 307-309, 312 (map), 314

(chart); 3ER497-499) and Defendants’ expert Mr. Ortega

admitted (2ER279-281, 286). The annual quantity of this

pollution is enormous – equal to one square mile nine feet

deep. (3ER500, 502-505.) Its selenium kills salmon and

deforms birds, and threatens human health. (2FER378;

10FER2332-2333.)

In summary, the Opinion impermissibly usurps

Congress’ legislative power. The judiciary’s role is to

interpret language adopted by Congress, not change that

language to support a different meaning. (Germain, 503

U.S. at 254; Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A., 530 U.S. 1, 6 (2000) (when “the

statute’s language is plain, ‘the sole function of the courts’”

– at least where the disposition required by the text is

not absurd – “‘is to enforce it according to its terms.’”)

The Opinion rewrote the statutory language to achieve

a different result, exactly what the judicial branch is

forbidden from doing. (Charboneau v. Davis, 87 F.4th 443,

454 (9th Cir. 2023) (Courts “cannot rewrite the statute to

insert an additional restriction that Congress omitted”).)

III. T H E OPI N ION CON FLIC T S W I T H T H IS

COURT’S RULINGS

The Opinion is contrary to this Court’s ruling in

Miccosukee. There, this Court rejected the mistaken view

repeated by the District Court here that to trigger the

NPDES permit requirement, “there must still be a point

source from which the pollutants originate.” (App. 59a

(emphasis added).) This Court explained why:

“A point source is, by definition, a ‘discernible,

confined, and discrete conveyance,’ § 1362(14)

(emphasis added). That definition makes plain

that a point source need not be the original

source of the pollutant; it need only convey

the pollutant to ‘navigable waters,’ which are,

in turn, defined as ‘the waters of the United

States.’ § 1362(7).”

(541 U.S. at 105 (emphasis added).)

Justice O’Connor elaborated:

“Tellingly, the examples of ‘point sources’

listed by the Act include pipes, ditches,

tunnels, and conduits, objects that do not

themselves generate pollutants but merely

transport them. § 1362(14). In addition, one

of the Act’s primary goals was to impose

NPDES permitting requirements on municipal

wastewater treatment plants. . . . [Such plants]

discharge pollutants added to water by others.”

(Id. (emphasis added).)

Contrary to Miccosukee, the District Court excused

Defendants’ violation of the Act on the grounds

“the alleged sources of pollution are, on this

evidence of record, nonpoint sources or stem

from activities related to crop production.

Therefore they are all covered under the ‘1342(l)

(1) exception.”

(App. 77a (emphases added).) The exemption, however,

does not state or imply that only “point sources” of

pollution from unfarmed lands are exempted. (33 U.S.C.

§ 1342(l)(1).) And, EPA’s controlling regulations refute

this mistaken view, as discussed below.

The District Court also found persuasive that

“the Ninth Circuit pointed in this case to one legislator’s

statement that ‘an NPDES permit would not be required

for “a vast irrigation basin that collects all of the waste

resident of irrigation water in the Central Valley and

places it in [the San Luis Drain] and transport[s] it . . .

[to] the San Joaquin River.” (App. 78a, quoting Glaser, 945

F.3d at 1084 (citing Northwest Environmental Defense

Center v. Brown (“Brown”), 640 F.3d 1063 (9th Cir. 2011);

rvsd. and rem. on other gds. sub nom. Decker v. Northwest

Environmental Defense Center, 568 U.S. 597 (2013).)

The District Court failed to realize, however, that

the Glaser Court was mistaken. It had overlooked the

fact that “Congressman Roncalio’s attempt to expand the

CWA’s ‘return flows from irrigated agriculture’ exemption

to include the Drain was ‘rejected on the House floor.’”

(Appellants’ Petition for Rehearing En Banc, Dkt. 64

(“Rehg. Ptn.”) at 15, citing Brown, 640 F.3d at 1072.) The

fact that Congress rejected an amendment that would have

exempted the Drain strongly supports Plaintiffs’ position

that the Drain is not exempt, and undermines Defendants’

position that it is. (Mohasco Corp. v. Silver, 447 U.S

807, 824 (1980) (rejecting respondents’ interpretation

because Congress had “expressly rejected the language

that would have mandated the exact result that respondent

urges.”)

The Ninth Circuit ignored Plaintiff’s request that it

address Congress’ rejection of Congressman Roncalio’s

proffered amendment, and instead, it adopted the District

Court’s rationale that “nonpoint” sources of pollution from

unfarmed lands were exempted. (App. 21a, 26a; Rehg. Ptn.

at 15, citing Brown, 640 F.3d at 1072.)

The Opinion argues that Miccosukee is distinguishable

because it did not interpret § 1342(l)(1), and merely held

that a water pump could be a point source even though

it did not originate the pollutants. (App. 24a-26a.) But

Miccosukee conclusively construed the exact term that the

Ninth Circuit seized upon as dispositive here even though

it does not appear in § 1342(l)(1): “point source.” Therefore

a proper understanding of what a point source is – and is

not – is necessary to evaluate the Opinion’s holding that

Congress intended to allow point sources like the Drain

to discharge pollutants from unfarmed lands without an

NPDES permit unless the pollutants originated from a

second, upstream point source.

Three observations follow. First, the Drain is a “point

source” even though it is “not . . . the original source of

the pollutant,” since “it need only convey the pollutant

to ‘navigable waters’” to be a point source. (Miccosukee,

541 U.S. at 105.) Since it is a point source, the Drain

is not exempt from the NPDES unless its “discharges

are composed entirely of return flows from irrigated

agriculture.” (33 U.S.C. § 1342(l)(1).) Since as shown they

are not, it follows that an NPDES permit is required here,

regardless of whether the “originating” sources of the

pollutants collected by the Drain are also “point sources.”

That point confirms the Opinion erred, since it erroneously

assumed, as did the District Court (App. 62a-65a, 76a-77a),

that the Drain was exempt unless its originating sources

were themselves “point sources.”

Second, since Miccosukee held that a “point source”

is defined as a “conveyance” of pollutants to navigable

waters, it follows that for the “originating” sources of the

Drain’s pollutants to also be point sources, they would

have to convey pollutants to navigable waters. (541 U.S.

at 105.) But that would be physically impossible, since if

those originating point sources discharged pollutants to

navigable waters, those pollutants would be discharged

into and carried away by those navigable waters, beyond

human control (such as conveyance to the Drain) and

treatment.

Third, the exemption as rewritten by the Opinion would

negate the restrictive term “entirely,” since the exemption

would allow dischargers of dispersed wastewater from

unfarmed lands to avoid NPDES scrutiny simply by

including some irrigation return flow in their discharge

stream. “[A]n interpretation that would facilitate ‘evasion

of the law’” should be avoided, not embraced. (County of

Maui, 590 U.S. at 179 (quotation omitted).)

The Opinion conflicts with County of Maui. There,

this Court required an NPDES permit for an agency’s

discharge of wastewater to the ocean via a known and

well-defined underground channel, holding the CWA

“requires a permit when there is a direct discharge from

a point source into navigable waters or when there is the

functional equivalent of a direct discharge.” (Id. at 183184.) It did so partly out of respect for EPA’s “longstanding

regulatory practice” (despite its recent abandonment)

to include discharges to groundwater that had a “direct

hydrological connection” to navigable waters (id. at 177),

and partly to prevent “evasion of the law” by dischargers

who might otherwise sidestep NPDES permitting by

discharging pollutants just short of navigable waters (id.

at 178-179).

So too here, Plaintiffs ask this Court to accord great

weight to EPA’s “longstanding regulatory practice”

of requiring an NPDES permit for the discharge to

navigable waters of pollutants collected from nonpoint

sources (see infra) and to construe the CWA in a manner

that discourages rather than rewards evasion of its

purposes.

Contrary to County of Maui, the Opinion invites

evasion of the NPDES by construing § 1342(l)(1) to

exempt point source dischargers that collect dispersed

wastewater from unfarmed lands, and ignores Plaintiffs’

repeated citation to the longstanding EPA regulation, 40

C.F.R. § 122.2, which states that “point sources” “include[]

additions of pollutants into waters of the United States

from: surface runoff which is collected or channeled by

man” – exactly what the Drain does here. (Appellants’

Opening Brief, Dkt. 14 (“AOB”) at 3, 26, 28, 32, 36;

Appellants’ Reply Brief, Dkt. 43 (“ARB”) at 2, 10, 13, 15,

29; Rehg. Ptn. at 2-5, 11-13, 15-16.)

IV. T H E OPI N ION C ON F L IC T S W I T H T H E

GOVERNING EPA REGULATION

The Opinion holds that the Drain’s point source

discharge of pollutants collected from unfarmed lands is

exempt from NPDES permitting because those pollutants

originate from non-point sources. (App. 18a, 27a, 30a.)

This holding conflicts with EPA’s governing regulation, 40

C.F.R. § 122.2, which as explained, rejects the Opinion’s

erroneous premise that to trigger NPDES permitting, a

point source discharge (like the Drain) must originate its

pollutants, stating:

“This definition [of ‘Discharge of a pollutant’]

includes additions of pollutants into waters of

the United States from: surface runoff which

is collected or channeled by man. . . .”

(Id. (emphasis added); quoted in Mokelumne, 13 F.3d at

308).)

Surface runoff is obviously a non-point source, but if

it is collected and discharged through a point source, it

requires an NPDES permit, as Mokelumne held. This

regulation directs contrary to the Opinion that the CWA’s

“definition [of ‘discharge of pollutants’ triggering NPDES

permitting] includes additions of pollutants into waters of

the United States from: surface runoff which is collected

or channeled by man” – exactly the situation here.

EPA’s long-standing NPDES regulation is entitled

to “great deference.” (Udall v. Tallman, 380 U.S. 1, 16

(1965); cf. Maui, 590 U.S. at 177-178.) In Sierra Club v.

Union Oil Co. of California (“Union Oil”) 813 F.2d 1480

(9th Cir. 1987) (vac. and rem. on other gds. sub nom.

Union Oil Co. of California v. Sierra Club, 485 U.S.

931 (1988)); reinstated, 853 F.2d 667 (9th Cir. 1988)), the

court held that 40 C.F.R. Part 122 governs the NPDES

permit program. (813 F.2d at 1490-1491.) In Mokelumne,

the court applied § 122.2 to require NPDES permitting

for the collection and discharge of contaminated surface

runoff to a navigable water – precisely the circumstance

here. (13 F.3d at 308.)

V. THE OPINION CONFLICTS WITH THE RULINGS

OF OTHER CIRCUIT COURTS OF APPEAL

The Opinion creates a conflict between the Circuits as

to whether the CWA’s exemption of “discharges composed

entirely of return flows from irrigated agriculture” from

the Act’s NPDES permit program (33 U.S.C. § 1342(l)

(1)) also exempts non-exempt pollutants that originated

on non-agricultural properties but became commingled

with agricultural runoff before their discharge through

a point source. The Opinion holds that the point source

discharge of pollutants collected from nonpoint sources

on unfarmed lands is exempt from the NPDES program.

(App. 21a-30a.)

The Eleventh Circuit ruled to the contrary in

Fishermen Against the Destruction of the Environment,

Inc. v. Closter Farms, Inc. (“Closter Farms”), 300 F.3d

1294, 1298 (11th Circuit 2002) that “[a]ny pollutants that

originated in the non-agricultural properties . . . obviously

do not fall within the agricultural exemptions.” However,

unlike here, in Closter Farms an NPDES permit was

not required because the evidence “established that

discharges from [the unfarmed adjoining properties]

are either the subject of existing NPDES permits or are

exempted from NPDES permitting.” (Id.)

The Tenth Circuit likewise ruled to the contrary in

Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133,

1142 (10th Cir. 2005) that “the collecting and channeling

of surface runoff” for discharge to navigable waters

is subject to NPDES permitting. (Id., paraphrasing

Mokelumne, 13 F.3d at 308.)

The Opinion conflicts with these rulings by exempting

the Drain’s collection and discharge through a point source

of nonpoint pollutants from unfarmed lands (which are

not exempt) because they did not originate from a second,

upstream point source.

VI. T H E O P I N I O N S U B O R D I N A T E S T H E

EXEMPTION’S PLAIN LANGUAGE TO THE

OPINION’S MISREADING OF AN INNOCUOUS

PASSAGE FROM A SENATE REPORT.

It is “well settled that ‘the starting point for

interpreting a statute is the language of the statute itself.’”

(Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,

Inc., 484 U.S. 49, 56 (1987) (quotation omitted).) Although

the Opinion states that “[w]e begin with the text of the

statute” (App. 19a), after reciting the exemption’s key

phrase the Opinion never examines its meaning. Instead, it

bypasses that essential task because Glaser had concluded

the text did not “resolve ‘whether the discharges at issue

[were] exempt.’” (App. 8a.) But resolution of that ultimate,

mixed issue of law and fact must follow rather than

precede the court’s first step: discerning the meaning of

the statute’s words.

Had the Opinion simply paused to examine the

statute’s plain language, there would have been no need to

examine legislative history for clues to unravel a supposed

ambiguity. As discussed above, the plain language and

meaning of § 1342(l)(1), elucidated by the Act’s detailed

definitions, is unambiguous: An NPDES permit is not

required “for discharges composed entirely of return

f lows from irrigated agriculture,” and the Drain’s

release of pollutants is indisputably a “discharge.” (Id.;

33 U.S.C. § 1362(7), (12), (14), (16).) Perforce, the Drain’s

discharges are “discharges of pollutants” to Mud Slough,

an undisputed “navigable water.” Therefore, the only

remaining question is whether the Drain’s “discharges

are composed entirely of return flows from irrigated

agriculture.” Since as shown they are not, the Judgment

below must reversed.

Departing from this settled rule of statutory

construction, the Opinion erroneously elevated a single

ambiguous passage in a Senate Conference Report to

supersede and displace both the statute’s plain language

as discussed above, and the fact that Congress specifically

rejected an amendment to the CWA that would have

greatly expanded the scope of the exemption of return

flows from irrigated agriculture to include all discharges

from the San Luis Drain, which is exactly what the

Opinion accomplishes despite Congress’ rejection of that

very result.

But close examination of the conference report refutes

the Opinion’s interpretation. The two paragraphs on which

the Opinion relies state:

“ Testimony in f ield hear ings suggested

that effluent limits based on technological

methods may not be appropriate for control

of return flow pollutants and the committee

determined that these sources were practically

indistinguishable from any other agricultural

runoff, which may or may not involve a similar

discrete point of entry into a watercourse. All

such sources, regardless of the manner in which

the flow was applied to the agricultural lands,

and regardless of the discrete nature of the

entry point, are more appropriately treated

under the requirements of section 208(b)(2)(F).

In exempting discharges composed ‘entirely’ of

return flows from irrigated agriculture from

the requirements of section 402 the committee

did not intend to differentiate among return

f lows based upon their content. The word

‘entirely’ was intended to limit the exception to

only those flows which do not contain additional

discharges from activities unrelated to crop

production.”

(App. 11a-12a, 21a.)

This passage supports Plaintiffs, not Defendants. The

first paragraph states that return flows are “practically

indistinguishable” from other agricultural runoff and

therefore best regulated under § 208 of the Act. That, of

course, is why they are being exempted. Nothing in this

paragraph conflicts with the exemption’s plain language

and meaning.

The first sentence of the second paragraph states,

again consistent with the statutory text, that § 1342(l)(1)

“exempt[s] discharges composed ‘entirely’ of return flows

from irrigated agriculture from the requirements of

section 402.” (Id.) It repeats without alteration and thereby

confirms the plain meaning of the exemption’s text. This

supports Plaintiffs, not Defendants. But instead of setting

forth and addressing this first sentence to ensure the full

text of this passage is considered, the Opinion omits any

mention of it. (App. 21a.) That omission is plain error, since

the first sentence explains the meaning of the second.

(Richards v. United States, 369 U.S. 1, 11 (1962) (statutory

interpretation “must not be guided by a single sentence

or member of a sentence”).)

The second sentence of the second paragraph does

not depart from the first sentence’s confirmation of the

exemption’s plain meaning. To the contrary, it explains

and elaborates on the statement at the end of the first

sentence that “in exempting discharges composed

entirely of return flows, the committee did not intend to

differentiate among return flows based on their content.”

In other words, all discharges composed entirely of return

flows are exempted, regardless of the content of the return

flows they contain. But, as the second sentence hastens to

explain, those return flows must not themselves include

any discharges from activities (presumably, on the farmed

lands drained by the return flows) that are unrelated to

crop production. That is why the second sentence includes

the admonition that the “flows” themselves must not

contain “discharges” from “activities unrelated to crop

production.” This “nesting doll” clarification is entirely

consistent with the statutory text.

Nothing in this second sentence suggests that it

is retracting the first sentence, let alone rewriting

the statutory language itself. Yet that is exactly the

interpretation on which the Opinion is premised. Such a

reading is not just extreme, but absurd. Why in the world

would the committee that carefully drafted the clear and

forceful language of the statutory exemption then bury

in a committee report their real intent to eviscerate what

they had accurately articulated in the statute? The answer

is that there is no reason why they would do that, and they

certainly did no such thing here.

The correct interpretation of the committee report

laid out above is the most natural reading of the report.

It reasonably harmonizes the two paragraphs with each

other, and with the statutory text. As this Court ruled

over 150 years ago:

“The proper course in all cases is to adopt that

sense of the words which best harmonizes with

the context, and promotes in the fullest manner

the policy and objects of the legislature. The

rule of strict construction is not violated by

permitting the words of the statute to have

their full meaning, or the more extended of

two meanings, as the wider popular instead of

the more narrow technical one; but the words

should be taken in such a sense, bent neither

one way nor the other, as will best manifest the

legislative intent.”

(United States v. Hartwell, 73 U.S. 385, 396 (1867).)

Rather than respect this settled interpretive rule,

the Opinion went out of its way to selectively construe

a phrase in the committee report in isolation, and in a

manner hostile to § 1342(l)(1)’s plain language. (App.

21a.) Consequently, the Opinion exempts a discharge

that is not “composed entirely of return flows from

irrigated agriculture,” contrary to the exemption’s stated

terms and defeating Congress’ express limitation that

only discharges composed “entirely” of return flows be

exempted.

Moreover, there is nothing in this passage that

suggests that the Conference Committee intended to

exempt discharges containing pollutants from unfarmed

lands unless they originated from “point sources” – a term

not even mentioned in the report. The Committee’s use

of the term “discharge” in its “every day meaning” is

also neither unusual nor fraught with deeper meaning.

(County of Maui, 590 U.S. at 179 (acknowledging this

practice).)

Equally untenable, the Opinion’s insistence that to

trigger NPDES permitting, discharges of agricultural

return flows to navigable waters (such as the Drain’s

discharges) must have as their source other, upstream

“point source discharges” is devoid of any textual, factual

or logical basis. Under the Act’s definitions, a “point

source discharge” requires a discharge of pollutants

to navigable waters. (33 U.S.C. §§ 1362(12) (“discharge

of a pollutant”); 1362(14) (“point source”); and 1362(16)

(“discharge”).) Therefore, any “point source discharge”

upstream of the discharge in question (e.g., the Drain here)

would have to discharge its wastestream to navigable

waters rather than to the downstream discharger (such

as the Drain).

The Opinion’s rewriting of § 1342(l)(1) is thus premised

on two impossibilities. First, there are no navigable waters

upstream of the Drain into which these upstream sources

might discharge in order to be considered “point sources.”

Second, even assuming arguendo that there were, there

is no means by which the discharged wastewater could

be recovered from the navigable waters into which it had

been discharged in order to be redirected to the Drain to

be discharged a second time to navigable waters.

This factual and logical impossibility exists not

just with the Drain, but with every other discharge of

wastewater to navigable waters. Once discharged the first

time, the wastewater escapes the control of the discharger,

and becomes an inseparable part of the receiving waters.

Consequently, the Opinion’s rewriting of the statutory

exemption not only usurps Congress’ exclusive power to

legislate, it is based on a hydrological construct that defies

both the factual universe and the rules of logic.

Worse, the Opinion’s counter-factual premise negates

the exemption’s restriction to discharges composed

“entirely” of return flows. As County of Maui observed,

“[w]e do not see how Congress could have intended to

create such a large and obvious loophole in one of the key

regulatory innovations of the Clean Water Act.” (590 U.S.

at 178 (quotation omitted).)

Finally, the Opinion’s exemption of the Drain

despite its discharge of pollutants from unfarmed lands

cannot be squared with the fact that Congressman

Roncalio’s attempt to expand the CWA’s “return flows

from irrigated agriculture” exemption to expressly

include the Drain was “rejected on the House floor.”

(Brown, 640 F.3d at 1072.) The Opinion never addresses

Congress’ rejection of an amendment proposing what

the Opinion wrought instead by rewriting § 1342(l)(1)

to exempt the Drain from NPDES permitting, even

though Plaintiffs repeatedly brought this probative

legislative history to the Court’s attention. (ARB at 14,

18; Rhg. Ptn. at 15.)

In summary, the Opinion’s failure to respect the

language selected by Congress and to rely instead on a

misreading of its legislative history yielded a ruling that

departs not just from the statutory language Congress

adopted, but from common sense and the environmental

restoration purpose of the Act.

VII.

THE OPINION INVENTS A “STRAW MAN”

Plaintiffs have never advanced the claim – incorrectly

attributed to them by the Opinion – that an NPDES permit

is required because the Project discharges “windblown

dust and algae.” (App. 5a, 23a-24a.) Although Defendants’

descriptions of their Project’s discharges have routinely

mentioned the presence of “windblown dust and algae”

(2FER388), Plaintiffs have never pleaded their presence in

the Drain’s discharges as a basis for requiring an NPDES

permit. (2ER98, 174, 235.)

Likewise, the appellate hearing transcript does

not support the Opinion’s claim that Plaintiffs’ counsel

admitted their claims were based on “wind-blown dust

and algae” contamination of Defendants’ discharge, or

that this contamination was “inevitable.” (App. 5a-6a,

23a-24a.) To the contrary, Plaintiffs consistently argued,

at trial and in both appeals, that Defendants’ Project

collects and discharges pollutants from four human

activities unrelated to crop production that fall outside

the exemption: (1) drainage of contaminated groundwater

from unfarmed lands along the Drain (2ER288-314,

3ER497-499, 7FER1599-1604), (2) resuspension and

discharge of toxic concentrations of seleniferous sediment

up to 7.8 feet thick aggregating 274,000 cubic yards

caused by improper maintenance of the Drain (3ER499501; 7FER1598-1599, 1606; 10FER2195-2197, 2208-2213

(expert photographs) (see Rybachek, 904 F.2d at 12851286); (3) tile drainage of seleniferous groundwater

beneath the Vega solar facility operated to avoid flooding

its electrical facilities (6FER515, 1316), and (4) drainage

of seleniferous wastewater from lands neither farmed nor

irrigated (2ER288-314; 3ER497-499, 7FER1599-1604).

(Glaser, 945 F.3d at 1086 (allowing these claims); 2ER7983,

94102, 172180, 232240.)

Unfortunately, the Opinion omits mentioning that

Defendants declined to build alternative drain/pipe or

treatment options to address the Drain’s collection and

discharge of pollutants from unfarmed lands. (2FER334337, 389-391.)

The Opinion’s exemption of thousands of acre-feet of

polluted wastewater because the Project also collected and

discharged background levels of “wind-blown dust and

algae” that the Court deemed “inevitable” is analogous to

exculpating a bank robber because the $10,000 in stolen

funds in his possession is offset by the $1 in his pocket he

did not steal. Union Oil held such “aggregative” evasion

of the NPDES foreign to our jurisprudence. (813 F.2d at

1491.)

CONCLUSION

The Opinion conflicts sharply with the CWA, its

regulations and case law. This Court’s review will assure

fidelity to Congress’ command “to restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” (33 U.S.C. §1251(a).) “[C]ompliance with

NPDES permitting requirements” will help protect and

restore the San Joaquin River’s imperiled water quality,

fish and wildlife. (Na Kia’i Kai v. Nakatani, 401 F.Supp.3d

1097, 1110 (D. Hawaii 2019).)

Accordingly, this Petition should be granted.

Dated: February 17, 2026

Respectfully submitted,

Stephan C. Volker (CSB #63093)

Counsel of Record

Stephanie L. Clarke (CSB #257961)

Jamey M.B. Volker (CSB #273544)

Law Offices of Stephan C. Volker

1633 University Avenue

Berkeley, CA 94703

(510) 496-0600

svolker@volkerlaw.com

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E N I N T H C I R C U I T, F I L ED

SEPTEMBER 5, 2025 . . . . . . . . . . . . . . . . . . . . . . . . .1a

A PPENDI X B — J U DGMENT OF THE

UNITED STATES DISTRICT COURT,

EASTERN DISTRICT OF CALIFORNIA,

FILED FEBRUARY 21, 2023 . . . . . . . . . . . . . . . . . 31a

APPENDIX C — ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF CALIFORNIA,

FILED FEBRUARY 21, 2023 . . . . . . . . . . . . . . . . . 32a

APPENDIX D — ORDER OF THE UNITED

STAT ES COU RT OF A PPEA LS FOR

T H E N I N T H C I R C U I T, F I L ED

NOVEMBER 18, 2025 . . . . . . . . . . . . . . . . . . . . . . . . 81a

APPENDIX E — RELEVANT STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83a

APPENDIX F — REGULATIONS . . . . . . . . . . . . . . 88a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT,

FILED SEPTEMBER 5, 2025

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-15599

D.C. No. 2:11-cv-02980-DAD-CKD

PACIFIC COAST FEDERATION OF FISHERMEN’S

ASSOCIATIONS, INC.; CALIFORNIA

SPORTFISHING PROTECTION ALLIANCE;

FRIENDS OF THE RIVER; SAN FRANCISCO

CRAB BOAT OWNERS ASSOCIATION, INC.;

THE INSTITUTE FOR FISHERIES RESOURCES;

FELIX SMITH,

Plaintiffs-Appellants,

ADAM NICKELS , ACTING REGIONAL DIRECTOR

OF THE U.S. BUREAU OF RECLAMATION;

UNITED STATES BUREAU OF RECLAMATION;

SAN LUIS & DELTA MENDOTA WATER

AUTHORITY,

Defendants-Appellees,

and

GRASSLAND WATER DISTRICT,

Intervenor-Defendant-Appellee.

* Under Federal Rule of Appellate Procedure 43(c)(2), Acting

Regional Director Adam Nickels is substituted for Ernest Conant

as his successor.

Appendix A

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Argued and Submitted October 21, 2024

San Francisco, California

Filed September 5, 2025

Before: Richard R. Clifton, Jennifer Sung,

and Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Sanchez

OPINION

SANCHEZ, Circuit Judge:

The Clean Water Act (“CWA”) generally prohibits the

discharge of pollutants into navigable waters of the United

States without a permit under the National Pollutant

Discharge Elimination System (“NPDES”) program.

See 33 U.S.C. §§ 1311(a), 1342(a)(1). In 1977, Congress

carved out an exemption to this permit requirement

for “discharges composed entirely of return flows from

irrigated agriculture” and entrusted the regulation of

such discharges to the States. Id. § 1342(l)(1). Under this

exemption, the Grassland Bypass Project (“Project”)

in California’s Central Valley has operated without an

NPDES permit since 1997. The Project comprises an

expansive drainage system that takes in water used for

irrigation from across 97,400 acres of land and transports

that “return flow” over 28 miles through a canal before its

ultimate discharge into the Mud Slough wetland.

Appendix A

At issue in this appeal is whether the statutory

exemption for irrigation return flows has been wrongly

applied to the Project because diffuse “nonpoint source”

pollution—such as pollution from rainwater runoff

or windblown dust and algae—commingles with the

Project’s return flows prior to discharge into waters of

the United States. We agree with the district court that

the Project’s exempt status should be upheld and reject

Plaintiffs’ contention that the commingling of any amount

of nonpoint source pollution from a non-agricultural source

forecloses the exemption. To adopt Plaintiffs’ position

would contravene the text, purpose, and structure of the

Clean Water Act and render the exemption for irrigated

agriculture a dead letter. Accordingly, we affirm the

district court’s partial grant of summary judgment.

I. BACKGROUND

A. Clean Water Act

In 1972, Congress passed the Clean Water Act to

“restore and maintain the chemical, physical, and biological

integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).

One “central provision” of the Act is that “individuals,

corporations, and governments secure National Pollutant

Discharge Elimination System (NPDES) permits before

discharging pollution from any point source into the

navigable waters of the United States.” Decker v. Nw.

Env’t Def. Ctr., 568 U.S. 597, 602, 133 S. Ct. 1326, 185 L.

Ed. 2d 447 (2013) (citing id. §§ 1311(a), 1362(12)). While the

CWA “banned . . . discharges from point sources” without

NPDES permits, the “discharge of pollutants from

Appendix A

nonpoint sources—for example, the runoff of pesticides

from farmlands—was not directly prohibited.” Or. Nat.

Desert Ass’n v. Dombeck, 172 F.3d 1092, 1096 (9th Cir.

1998) (quoting Nat. Res. Def. Council v. EPA, 915 F.2d

1314, 1316 (9th Cir. 1990)). This differential treatment of

“point sources and nonpoint sources is an organizational

paradigm of the [CWA].” Or. Nat. Desert Ass’n v. U.S.

Forest Serv., 550 F.3d 778, 780 (9th Cir. 2008).

The CWA defines key terms such as “point source,”

“pollutant,” “discharge of a pollutant,” and “discharge” in

service of that regulatory distinction. A “point source” is

defined in the statute as:

[A]ny discernible, confined and discrete

conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete

fissure, container, rolling stock, concentrated

animal feeding operation, or vessel or other

floating craft, from which pollutants are or

may be discharged. This term does not include

agricultural stormwater discharges and return

flows from irrigated agriculture.

33 U.S.C. § 1362(14). The term “pollutant” is defined as:

[D]redged spoil, solid waste, incinerator

residue, sewage, garbage, sewage sludge,

mu n it ions, chem ic a l wa st es, biolog ic a l

materials, radioactive materials, heat, wrecked

or discarded equipment, rock, sand, cellar dirt

and industrial, municipal, and agricultural

waste discharged into water.

Appendix A

Id. § 1362(6). “[D]ischarge of a pollutant” and “discharge”

are defined as:

(12) The term “discharge of a pollutant”

[means] any addition of any pollutant to

navigable waters from any point source . . . .

(16) The term “discharge” when used without

qualification includes a discharge of a pollutant

....

Id. § 1362. Because “discharge of a pollutant” is

necessarily “from any point source,” id. § 1362(12), the

term “discharge” refers specifically to a point source

discharge of a pollutant. See Dombeck, 172 F.3d at 1096.

The CWA does not define “nonpoint source pollution,”

but “it is widely understood to be the type of pollution

that arises from many dispersed activities over large

areas, and is not traceable to any single discrete source.”

League of Wilderness Defs./Blue Mountains Biodiversity

Project v. Forsgren, 309 F.3d 1181, 1184 (9th Cir. 2002).

“The most common example of nonpoint source pollution

is the residue left on roadways by automobiles,” such as

“[s]mall amounts of rubber” that are “worn off of the tires

of millions of cars” or the “minute particles of copper

dust from brake linings” that eventually “wash off of the

streets and are carried along by runoff in a polluted soup,

winding up in creeks, rivers, bays, and the ocean.” Id.; see

also Dombeck, 172 F.3d at 1095 (“Other pollution sources,

such as runoff from agriculture or in this case, animal

grazing, are nonpoint sources.”). Because nonpoint source

pollution “arises in such a diffuse way, it is very difficult

Appendix A

to regulate through individual permits.” Forsgren, 309

F.3d at 1184.

Nonpoint source pollution lies outside the federal

NPDES permit scheme and is “not regulated directly by

the [CWA].” Dombeck, 172 F.3d at 1096. Rather, the CWA

indirectly regulates nonpoint source pollution through

“federal grants for state wastewater treatment plans”

under Section 208, codified under 33 U.S.C. § 1288. Id.

The CWA “envisions EPA’s role in managing nonpoint

source pollution . . . as limited to studying the issue,

sharing information with and collecting information from

the States, and issuing monetary grants.” Cnty. of Maui

v. Haw. Wildlife Fund, 590 U.S. 165, 175, 140 S. Ct. 1462,

206 L. Ed. 2d 640 (2020). As the Supreme Court explained

in Maui, “the structure of the [CWA] indicates that, as

to groundwater pollution and nonpoint source pollution,

Congress intended to leave substantial responsibility

and autonomy to the States.” Id. at 174. Indeed, the

regulation of nonpoint source pollution falls within States’

“traditional regulatory authority.” Id. at 175.

Although the CWA’s direct regulation of pollution is

limited to point source discharges, the Environmental

Protection Agency (“EPA”) nevertheless “found it difficult

to process permit applications from countless owners

and operators of point sources throughout the country.”

Decker, 568 U.S. at 602. One year after the passage of the

CWA, the EPA promulgated regulations to exempt several

kinds of point source discharges from the NPDES permit

system, including discharges from irrigated agriculture.

Nw. Env’t Def. Ctr. v. Brown, 640 F.3d 1063, 1073 (9th Cir.

2011), rev’d and remanded sub nom. Decker, 568 U.S. 597.

Appendix A

The EPA acknowledged “that the exempted categories

of sources are ones which fall within the definition of

point source,” but concluded that these sources “[were]

ill-suited for inclusion in a permit program.” Id. at 107374 (citation omitted). The agency explained that “while

some point sources within the excluded categories may

be significant contributors of pollution . . . , it would be

administratively difficult if not impossible, given Federal

and State resource levels, to issue individual permits to

all such point sources.” Id. at 1074 (quoting 40 Fed. Reg.

56932 (Dec. 5, 1975)).

The EPA’s attempt to exempt certain categories of

point source discharges from NPDES permitting was

rejected in Natural Resources Defense Council, Inc. v.

Costle, 568 F.2d 1369, 186 U.S. App. D.C. 147 (D.C. Cir.

1977). The D.C. Circuit held that the EPA “does not have

authority to exempt categories of point sources from the

permit requirements” and that “[e]ven when infeasibility

arguments were squarely raised, the legislature declined

to abandon the permit requirement” because the CWA

was designed to be a “tough law.” Id. at 1375-77. What the

EPA could not do by regulation, Congress accomplished

through legislation. In 1977, Congress amended the

CWA to establish a statutory exemption for irrigated

agriculture from NPDES permit requirements. Brown,

640 F.3d at 1073. The exemption provides:

(l) Limitation on permit requirement

(1) Agricultural return flows

The Administrator shall not require a

permit under this section for discharges

composed entirely of return flows from

Appendix A

i r r igated ag r iculture, nor shall the

Administrator directly or indirectly,

require any State to require such a permit.

33 U.S.C. § 1342(l)(1). While “return flows from irrigated

agriculture” was not defined by statute, Congress relied

on the EPA’s definition at the time of the amendment,

which was “conveyances carrying surface irrigation

return as a result of the controlled application of water

by any person to land used primarily for crops.” S. Rep.

No. 95-370, 35 (1977), as reprinted in 1977 U.S.C.C.A.N.

4326, 4360.

In establishing the irrigated agriculture exemption,

Congress sought to accomplish three aims. First,

Congress intended “to alleviate EPA’s burden in having

to issue permits for every agricultural point source.”

Pac. Coast Fed’n of Fishermen’s Ass’ns v. Glaser, 945

F.3d 1076, 1084 (9th Cir. 2019) (quoting Brown, 640 F.3d

at 1073). As one member of Congress explained, “[t]he

problems of permitting every discrete source or conduit

returning water to the streams from irrigated lands is

simply too burdensome to place on the resources of [the]

EPA.” 123 Cong. Rec. 38956 (Dec. 15, 1977) (statement of

Rep. Roberts). Second, the exemption “promote[d] equity

of treatment among farmers who depend on rainfall to

irrigate their crops and those who depend on surface

irrigation which is returned to a stream in discreet [sic]

conveyances.” Glaser, 945 F.3d at 1084 (quoting 123 Cong.

Rec. 26702 (Aug. 4, 1977) (statement of Sen. Stafford)); see

Forsgren, 309 F.3d at 1189 (explaining that the “statutory

Appendix A

exemption for agricultural return flows” reflected “the

need for parity of regulation between irrigated and nonirrigated agriculture”). As one Congressman explained,

the exemption “correct[ed] what has been a discrimination

against irrigated agriculture . . . . Farmers in areas of the

country which were blessed with adequate rainfall were

not subject to permit requirements on their rainwater

run-off, which in effect . . . contained the same pollutants.”

123 Cong. Rec. 39210 (Dec. 15, 1977) (statement of Sen.

Wallop).

Finally, the irrigated agriculture exemption was

prompted because of the technological difficulties in

determining whether pollutants commingled within

an irrigation return flow could be traced to particular

upstream sources. As the Senate Committee Report on

the 1977 amendments to the CWA explained:

Testimony in field hearings suggested that

effluent limits based on technological methods

may not be appropriate for control of return flow

pollutants and the committee determined that

these sources were practically indistinguishable

from any other agricultural runoff, which may

or may not involve a similar discrete point of

entry into a watercourse. All such sources,

regardless of the manner in which the flow

was applied to the agricultural lands, and

regardless of the discrete nature of the entry

point, are more appropriately treated under the

requirements of section 208(b)(2)(F).

10a

Appendix A

S. Rep. No. 95 -370, 35. In other words, Congress

determined that return flows from irrigated agriculture

were best managed under Section 208 as nonpoint source

pollution because it proved difficult, if not impossible, to

determine whether a given pollutant entered the waterway

through a point or nonpoint source. Pollutants from

irrigated agriculture “were practically indistinguishable”

from nonpoint sources such as agricultural runoff. Id. As

one Congressman described in a previously failed attempt

to adopt the exemption, it is “virtually impossible to

trace pollutants to specific irrigation lands, making these

pollutants a nonpoint source in most cases.” 118 Cong.

Rec. 10765 (Mar. 29, 1972) (statement of Rep. Roncalio);

see Brown, 640 F.3d at 1072.

Congress thus chose to regulate return flows from

irrigated agriculture under Section 208 as though they

were nonpoint sources of pollution. S. Rep. No. 95-370, 9.

State-managed treatment plans under Section 208 involve

procedures to “(i) identify, if appropriate, agriculturally

and silviculturally related nonpoint sources of pollution,

including return flows from irrigated agriculture, and

their cumulative effects . . . and (ii) set forth procedures

and methods . . . to control to the extent feasible such

sources.” 33 U.S.C. § 1288(b)(2)(F). Consistent with this

understanding, the definition of “point source” under

the CWA provides that “[t]his term does not include

agricultural stormwater discharges and return flows

from irrigated agriculture.” Id. § 1362(14). With this

background in mind, we turn to the facts of this case.

11a

Appendix A

B. FACTUAL BACKGROUND

The Grassland By pass Project (“Project”) in

California’s Central Valley is jointly administered by

Defendants- Appellees Adam Nickels (Acting Regional

Director of the U.S. Bureau of Reclamation), the U.S.

Bureau of Reclamation, the San Luis & Delta-Mendota

Water Authority (“SLDMWA”), and the Grassland Water

District. Implemented in 1996, the Project comprises an

extensive underground tile drainage system beneath the

Grassland Drainage Area (“Drainage Area”), serving

97,400 acres of land within the Delta-Mendota sub-basin

of the San Joaquin Valley.

12a

Appendix A

13a

Appendix A

This Drainage Area is composed of active, fallow, and

retired farmland as well as non-irrigable land used for

public infrastructure, residences, and businesses. On part

of the retired land is the Vega Solar Project, an array of

solar panels that occupies 178.3 acres of formerly irrigated

land. The Drainage Area is designed to remove the

contaminated irrigation water delivered by the Central

Valley Project and used by farmers. Glaser, 945 F.3d at

1080. “Irrigation and drainage are inherently linked”

because “[a]ny 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).

After the water leaves the Drainage Area, it enters

the Grassland Bypass Channel (“Bypass”) that conveys

it further into the San Luis Drain (“Drain”). The Drain

is owned by the Bureau of Reclamation and operated

by SLDMWA. The Drain spans approximately 28 miles

and was built with expansion joints and weep valves

to prevent damage to its concrete lining from the

pressure of surrounding groundwater. Nonetheless, the

Drain has accrued some damage over time. Due to its

perforated design and accumulated damage, surrounding

groundwater seeps into the Drain.

Sediments containing concentrations of pollutants like

selenium have also accumulated in the Drain, requiring

monitoring, occasional physical removal, and certain

reductions in flow rates. At its terminus, the Drain

discharges its contents into the Mud Slough wetland, a

14a

Appendix A

navigable water of the United States, which feeds into the

San Joaquin River and lies adjacent to numerous nationaland state-protected wildlife areas.

Since 1997, Defendants have operated the Project

as a nonpoint source without an NPDES permit under

the exemption for “discharges composed entirely of

return flows from irrigated agriculture.” 33 U.S.C.

§ 1342(l)(1). In place of NPDES permit requirements,

the Project’s discharges have been subject to state and

local environmental regulations that set water quality

standards for pollutants, require certain monitoring

practices, and establish best practices requirements.

C. Procedural History

Plaintiffs initiated this action in 2011 alleging that

Defendants’ operation of the Project violated the CWA by

discharging pollutants unrelated to irrigated agriculture

into navigable waters without an NPDES permit.1 After

years of litigation, the district court in 2016 granted in

part Defendants’ motion for summary judgment. Plaintiffs

then brought their first appeal to this court. We resolved

that appeal in Pacific Coast Federation of Fishermen’s

Associations v. Glaser, concluding that the district court

erred in three respects. 945 F.3d 1076 (9th Cir. 2019).

First, the district court erred by placing the burden on

Plaintiffs to demonstrate that the statutory exemption to

1. Plaintiffs are Pacific Coast Federation of Fishermen’s

Associations, California Sportfishing Protection Alliance, Friends

of the River, San Francisco Crab Boat Owners Association, Inc.,

Institute for Fisheries Resources, and Felix Smith.

15a

Appendix A

NPDES permitting for irrigated agriculture return flows

did not apply, rather than on Defendants to establish that

it did apply. Id. at 1083. Second, we concluded that the

district court erred in its interpretation of the exemption

“for discharges composed entirely of return flows from

irrigated agriculture” under 33 U.S.C. § 1342(l)(1), by

construing “entirely” to mean “majority.” Id. at 1085.

Third, we disagreed with the district court’s decision to

strike certain theories of liability on pleading grounds

and remanded those stricken claims to be reconsidered

under the correct interpretation of § 1342(l)(1). Id. at

1086-87. However, we upheld the district court’s broad

interpretation of the term “irrigated agriculture” to

encompass “all activities related to crop production.” Id.

at 1083-85.

On remand, and following cross-motions for summary

judgment, the district court reconsidered Plaintiffs’

claims predicated on four alleged sources of pollutants:

“(1) groundwater originating from beneath ‘non-irrigated’

land adjacent to the Drain which seeps into the Drain

through cracks and weep holes; (2) sediment that has

settled out over time in the Drain from the waters it

carries and which is purportedly discharged into Mud

Slough ‘when it is scoured and reworked by flows in the

Drain’; (3) water transported into tile drains underneath

the retired agricultural land occupied by the Vega Solar

Project; and (4) flows of polluted water in the Drainage

Area that allegedly stem from ‘highways, residences and

other non-irrigated lands.’”

The district court began by reconsidering “the

scope of the agricultural return flows exception provided

16a

Appendix A

by § 1342(l)(1)” following our decision in Glaser. The

district court first concluded that the exemption covered

“discharges that ‘do not contain additional discharges

from activities unrelated to crop production.’” The district

court reasoned that “additional discharges” must mean

discharges that are “[a]dded, extra, or supplementary

to what is already present or available.” Consequently,

“to qualify for the exception[,] defendants must establish

that plaintiffs’ alleged four sources of pollutants are not

added to the Project from an extra or supplementary point

source.” Next, the district court concluded that an activity

is “related to crop production” so long as it “is related to

the function and operation of the overall drainage plan.”

Putting these pieces together, the district court

concluded that, to qualify for the irrigated agriculture

exemption, “defendants must establish that plaintiffs’

alleged sources of pollutants . . . are not added from an

extra or supplementary point source that is unrelated

to the Project’s overall drainage function.” The district

court concluded that Defendants carried their burden

of establishing that the irrigated return flow exemption

applied because each alleged pollutant was either added

from a nonpoint source or was added from a point source

that related to the Project’s overall drainage function.

The district court granted in part Defendant’s motion for

summary judgment. 2 This appeal followed.

2. The district court denied Defendants’ motion for summary

judgment challenging Plaintiffs’ Article III standing and declined

to reach Defendants’ argument that the so-called water transfer

rule (40 C.F.R. § 122.3(i)) exempted the Project from permitting

requirements.

17a

Appendix A

II. DISCUSSION

We review the district court’s grant of summary

judgment and its interpretations of the CWA de novo.

Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006,

1017 (9th Cir. 2012) (en banc) (summary judgment);

Olympic Forest Coal. v. Coast Seafoods Co., 884 F.3d 901,

905 (9th Cir. 2018) (CWA). We agree with the district court

that Plaintiffs failed to raise a genuine dispute of material

fact as to whether the irrigated agriculture return flow

exemption applies to the Project. We conclude that the

exemption applies because the alleged pollutants are

either added to the Project via nonpoint sources or via a

point source related to crop production.

Although Defendants have operated the Project

without an NPDES permit since 1997, Plaintiffs seek to

undo the Project’s exempted status on the ground that

the Project’s discharge into the Mud Slough contains

pollutants that are not related to irrigated agriculture.

To that end, Plaintiffs interpret the language of the

exemption in 33 U.S.C. § 1342(l)(1) to require that the

exemption “appl[ies] only to pollutants that originated

‘entirely’ from irrigated agriculture.” In Plaintiffs’

reading, if an irrigation return flow commingles to any

degree with pollutants unrelated to irrigated agriculture,

then an NPDES permit is required for its discharge. To

hold otherwise, according to Plaintiffs, would “effectively

repeal[] the term ‘entirely,’ and preclude[] permit

regulation of commingled discharges.” We disagree.

18a

Appendix A

Plaintiffs’ theory does not follow from the text

and is inconsistent with the purpose and structure of

the CWA, and as a practical matter would render the

irrigated agriculture exemption a dead letter. One of “our

longstanding canons of statutory construction” is that

“we must normally seek to construe Congress’s work ‘so

that effect is given to all provisions, so that no part will be

inoperative or superfluous, void or insignificant.’” Ysleta del

Sur Pueblo v. Texas, 596 U.S. 685, 698-99, 142 S. Ct. 1929,

213 L. Ed. 2d 221 (2022) (quoting Corley v. United States,

556 U.S. 303, 314, 129 S. Ct. 1558, 173 L. Ed. 2d 443 (2009)).

We begin with the text of the statute. The irrigation

return flow exemption applies to “discharges composed

entirely of return flows from irrigated agriculture.” 33

U.S.C. § 1342(l)(1). This is not the first time we address

the meaning of this provision. In Glaser, we approached

the text in two pieces. We began by noting that the

“plain meaning of the statutory text” did not resolve

“whether the discharges at issue [were] exempt from

the CWA’s permitting requirement.” Glaser, 945 F.3d

at 1084. Accordingly, we relied on the legislative history

of § 1342(l)(1) to broadly interpret the term “irrigated

agriculture” as encompassing “all activities related to

crop production.” Id. at 1084-85. Turning next to the

word “entirely,” we observed that it was not defined by the

statute and considered its ordinary meaning to conclude

that “‘[e]ntirely’ is defined as ‘wholly, completely, fully.’”

Id. at 1085 (quoting Webster’s Third New International

Dictionary 758 (2002)).

The text does not dictate, however—and we did not

decide in Glaser—whether “entirely” requires every

19a

Appendix A

pollutant within a return flow to be from irrigated

agriculture or every discharge within a return flow to be

from irrigated agriculture. In other words, the statute’s

use of the word “entirely” is ambiguous because the statute

does not clarify the category of objects that “entirely”

is meant to exclude. Consider the following analogy

illustrating this ambiguity: If someone were to say, “My

wallet is filled entirely with twenties,” we might accept

that statement as true even if the wallet also contained,

say, a family photo, because the person presumably meant

only that the wallet does not contain other denominations

of money. Similarly, the text of § 1342(l)(1) can be read as

applying to discharges composed entirely of return flows

as opposed to non-agricultural discharges.

Given the ambiguity in the text, we turn to a highly

probative piece of legislative history for guidance, as we

did in Glaser. See In re HP Inkjet Printer Litig., 716 F.3d

1173, 1180-81 (9th Cir. 2013) (“Where the statutory text

is ambiguous . . . we may ‘look to other interpretive tools,

including the legislative history’ in order to determine

the statute’s best meaning.” (quoting Exxon Mobil Corp.

v. Allapattah Servs., Inc., 545 U.S. 546, 567, 125 S. Ct.

2611, 162 L. Ed. 2d 502 (2005))). Specifically, we quoted

the Senate Committee Report’s explanation that “[t]he

word ‘entirely’ was intended to limit the exception to only

those flows which do not contain additional discharges

from activities unrelated to crop production.” 3 S. Rep.

No. 95-370, 35; see Glaser, 945 F.3d at 1084 (quoting this

3. Plaintiffs concede that Glaser stated that the text of § 1342

(l)(1) “meant discharges that ‘do not contain additional discharges

from activities unrelated to crop production.’”

20a

Appendix A

language). It is fair to presume that the Report, which

was “written by the same legislators that authored the

exemption and which accompanied the proposed language

in an effort to explain the language’s meaning to the other

members of the Senate and House,” Pac. Coast Fedn.

of Fishermen’s Ass’ns v. Glaser, No. CIV S-2:11-2980KJM, 2013 U.S. Dist. LEXIS 132240, 2013 WL 5230266,

at *11 (E.D. Cal. Sept. 16, 2013), rev’d and remanded on

other grounds, 945 F.3d 1076 (9th Cir. 2019), used key

statutory terms as they were defined by the statute. Cf.

Garcia v. United States, 469 U.S. 70, 76, 105 S. Ct. 479,

83 L. Ed. 2d 472 (1984) (“In surveying legislative history

we have repeatedly stated that the authoritative source

for finding the Legislature’s intent lies in the Committee

Reports on the bill . . . .”). Under the CWA, the term

“discharge” necessarily presumes a point source. See 33

U.S.C. § 1362(12), (16); see also Dombeck, 172 F.3d at 1097

(holding that “[t]he term ‘discharge’ in § 1341 is limited to

discharges from point sources”). Applying the statutory

definitions in the context of the exemption’s legislative

history, we agree with the district court in concluding

that the exemption applies to irrigation return flows that

do not contain additional point source discharges from

activities unrelated to crop production.

Such a reading is consistent with the purpose and

structure of the CWA and Congress’s enactment of the

irrigated agriculture exemption. As discussed above,

“[n]onpoint source pollution is not regulated directly

by the [CWA].” Dombeck, 172 F.3d at 1096. Indeed, the

CWA “uses the ‘threat and promise’ of federal grants to

the states to accomplish this task.” Id. at 1097 (quoting

21a

Appendix A

Shanty Town Assocs. Ltd. P’ship v. EPA, 843 F.2d 782,

791 (4th Cir. 1988)). Leaving nonpoint source pollution to

the States, the CWA’s NPDES permitting scheme focuses

on pollution from point sources, “presumably because

they could be identified and regulated more easily tha[n]

nonpoint source polluters.” Id. at 1096 (quoting Nat. Res.

Def. Council v. EPA, 915 F.2d at 1316 ); see also U.S. Forest

Serv., 550 F.3d at 780 (“Congress primarily focused its

regulation under the [CWA] on point sources, which tended

to be more notorious and more easily targeted . . . .”).

As we explained above, Congress established the

irrigated agriculture exemption to address three primary

concerns. Congress sought to lessen the EPA’s burden in

having to issue permits to an excessive number of point

source discharges related to irrigated agriculture. See

123 Cong. Rec. 38956 (Dec. 15, 1977) (statement of Rep.

Roberts). The exemption was also designed to address

the unequal treatment between farmers who depend

upon rainfall to irrigate their crops and were not subject

to federal permitting requirements, and other farmers

who relied on surface irrigation and were subject to

NPDES permitting. See 123 Cong. Rec. 39210 (Dec. 15,

1977) (statement of Sen. Wallop); see also Glaser, 945

F.3d at 1084. Finally, the irrigated agriculture exemption

reflected the technical difficulties of regulating return flow

pollutants through the permitting scheme because it was

practically impossible to determine whether agricultural

pollutants were originally from point or nonpoint sources.

See S. Rep. No. 95-370, 35. In enacting the exemption,

Congress determined that return flows from irrigated

agriculture were best managed under Section 208 as

22a

Appendix A

nonpoint sources of pollution, through direct regulation

by the States. Id.

If Plaintiffs’ theory were correct that for the

exemption to apply, irrigation return flows cannot contain

any amount of nonpoint source pollution unrelated to

irrigated agriculture, then all three of Congress’s aims

would be thwarted. The EPA would again face the heavy

burden of issuing permits for an inordinate amount of

irrigation return flows. See Glaser, 945 F.3d at 1084.

Farmers reliant on surface irrigation for their crops would

be disproportionately burdened with NPDES permit

requirements relative to farmers blessed with abundant

rainfall for their crops. Id. And the EPA would be saddled

with the “virtually impossible” task of disentangling

commingled pollutants, tracing them back to specific

irrigated lands, and imposing permit requirements for

point source discharges on those farms. 118 Cong. Rec.

10765 (Mar. 29, 1972) (statement of Rep. Roncalio).

Plaintiffs’ interpretation of the CWA would also

render the irrigation return flow exemption a dead letter.

As Plaintiffs’ counsel conceded at oral argument, some

amount of nonpoint source pollution unrelated to irrigated

agriculture will inevitably commingle with irrigation

return flows. For example, one nonpoint source pollutant

Plaintiffs seek to regulate through the NPDES permit

is “windblown dust.” Under Plaintiffs’ reading of the

statute, an irrigation system would have to ensure that

no windblown dust ever enters the return flow conveyance

for the return f low to qualify under the statutory

exemption—a scientific impossibility. We cannot adopt a

23a

Appendix A

statutory reading which we know will sap the interpreted

provision of all practical significance.

The same would apply for other nonpoint sources

of pollution within an agricultural district such as

runoff from highways and roads, groundwater seepage

containing pollutants, or sediment that encroaches upon

return flow conveyances. See Forsgren, 309 F.3d at 1184.

Setting aside the difficult question of determining when a

nonpoint source pollutant is “related to crop production,”

Plaintiffs have not been able to explain how any irrigated

agriculture system would ever qualify for the exemption

under their interpretation of § 1342(l)(1).

Plaintiffs contend that their reading of the CWA

is mandated by Supreme Court and Ninth Circuit

precedents, which hold that an NPDES permit is required

whenever nonpoint source pollutants are “ultimately

discharged through a point source.” Because the record

here establishes a point source discharge of pollutants

into navigable waters—effluent flows from the Drain into

the Mud Slough—that is sufficient to require a permit

under the CWA and to foreclose the irrigated agriculture

exemption. Plaintiffs primarily rely on two cases, South

Florida Water Management District v. Miccosukee

Tribe of Indians, 541 U.S. 95, 124 S. Ct. 1537, 158 L. Ed.

2d 264 (2004) and Committee to Save Mokelumne River

v. East Bay Municipal Utility District, 13 F.3d 305 (9th

Cir. 1993).

24a

Appendix A

In Miccosukee, the defendants operated a water

pump—a point source—that pumped polluted water

from a canal into a navigable water. 541 U.S. at 100-01.

The defendants argued that the pump’s operation did

not require an NPDES permit because the pollutants

it discharged did not originate from the pump itself. Id.

at 104. The Supreme Court rejected this argument and

explained that “a point source need not be the original

source of the pollutant; it need only convey the pollutant

to ‘navigable waters.’” Id. at 105. Put differently, “a

point source is not exempt from the [NPDES] permit

requirement merely because it does not itself add

pollutants to the water it pumps.” Id. at 112 (Scalia, J.,

concurring in part and dissenting in part).

In Mokelumne, the defendants operated a dam that

discharged water into the Mokelumne River, a navigable

water. 13 F.3d at 306 -07. Commingled within this

discharged water was surface runoff from an abandoned

mining site that was channeled and then collected in the

dam reservoir prior to discharge. Id. at 307. Similar to

the defendants in Miccosukee, the defendants argued that

the dam’s discharges were not subject to NPDES permit

requirements because the dam did not itself “add” any

pollutants to a navigable water. Id. at 308. We disagreed

and found the dam’s discharge to be a point source

discharge of pollutants because “the source of pollution

added to the Mokelumne River is ‘surface runoff that is

collected or channelled by’ defendants from the abandoned

mine site.” Id. Mokelumne thus held that a point source

that channels “surface runoff” is subject to the permit

requirement because the CWA “categorically prohibits

25a

Appendix A

any discharge of a pollutant from a point source without

a permit.” Id. at 309.

Miccosukee and Mokelumne are inapposite because

neither case involved the statutory exemption for irrigated

agriculture under 33 U.S.C. § 1342(l)(1). In the absence of

the exemption, Plaintiffs are correct that a point source

that conveys a pollutant—even if it does not generate that

pollutant—is subject to the NPDES permitting scheme.

Miccosukee, 541 U.S. at 105. But Congress carved out an

exemption to the NPDES permit requirement for certain

discrete conveyances, including “discharges composed

entirely of return flows from irrigated agriculture.” 33

U.S.C. § 1342(l)(1). The fact that irrigation return flows

are ordinarily point source discharges is precisely why

Congress carved out the exemption in the first place. See

Brown, 640 F.3d at 1073-74. Therefore, the analysis in

Miccosukee and Mokelumne about the kinds of discharges

that are subject to NPDES permitting provides no answer

to the distinct question here—how we should interpret

and apply the statutory exemption for return flows from

irrigated agriculture.4

4. We reject Plaintiffs’ contention that “it is impossible to have

two separate point sources in sequence, because by definition, a ‘point

source’ discharges to a water of the United States.” In Maui, the

Supreme Court rejected the view that a point source must be the

“immediate” source of a pollutant’s addition into navigable waters.

590 U.S. at 172, 181 (holding that “pollution that reaches navigable

waters only through groundwater” may still constitute “pollution

that is ‘from’ a point source”). The Court reasoned that “[t]here is

nothing unnatural about such a construction” of the CWA, as it “does

not say ‘directly’ from or ‘immediately’ from.” Id. at 182. “Indeed, the

expansive language of the provision—any addition from any point

source—strongly suggests its scope is not so limited.” Id.

26a

Appendix A

In conclusion, we hold that the exemption for

“discharges composed entirely of return flows from

irrigated agriculture” under 33 U.S.C. § 1342(l)(1) applies

so long as the return flow does not contain additional

point source discharges from activities unrelated to crop

production.

Having established the scope of the irrigation return

flow exemption, we now turn to Plaintiffs’ four alleged

sources of pollution commingled in the Project’s return

flow: (1) seepage into the Drain from groundwater beneath

non-irrigated land adjacent to the Drain; (2) groundwater

seepage and runoff from “highways, residences and other

non-irrigated lands” in the Drainage Area; (3) sediment

that the Drain carries and discharges into the Mud Slough;

and (4) runoff and groundwater from retired agricultural

land occupied by the Vega Solar Project in the Drainage

Area.

Plaintiffs contend that each of these sources of

pollutants invalidates the Project’s exempt status. We

disagree. To reiterate, the irrigated agriculture exemption

applies to discharges that do not contain additional point

source discharges from activities unrelated to crop

production. This means that for the exemption to apply

here, Defendants bear the burden of demonstrating that

the Project’s discharged pollutants are either from a

nonpoint source or from an additional point source that is

related to crop production. See Glaser, 945 F.3d at 108385. Here, the district court correctly concluded that no

27a

Appendix A

genuine dispute of material fact exists as to whether any

of these alleged pollutants originated from an additional

point source that was unrelated to crop production. 5

First, groundwater seepage into the Drain from

adjacent non-irrigated and unfarmed lands is not a point

source discharge. It is well-established that groundwater

seepage is a type of nonpoint source pollution. Unlike a

point source that is a “confined and discrete conveyance”

like a “pipe, ditch, [or] channel,” 33 U.S.C. § 1362(14),

groundwater seepage is diffuse. See also Maui, 590 U.S.

at 169 (indicating without explanation that groundwater

is a nonpoint source). Because groundwater seepage is

not a point source discharge, Plaintiffs’ evidence that

“contaminated groundwater . . . seeps into the Drain” fails

to create a genuine dispute of material fact.

Second, groundwater seepage and runoff from

“highways, residences, and other non-irrigated lands”

in the Drainage Area do not constitute point source

discharges. Runoff is another quintessential example of

nonpoint source pollution. We have explained that “the

term ‘runoff’ describes pollution flowing from nonpoint

sources.” Dombeck, 172 F.3d at 1098 (“‘Congress had

classified nonpoint source pollution as runoff caused

primarily by rainfall around activities that employ or

create pollutants.’” (citation omitted)). Accordingly, the

runoff and seepage here do not constitute additional

5. Plaintiffs’ counsel conceded at oral argument: “In this case,

we identified four categories of pollutants that were nonpoint source

in nature but were contributing to the pollutants in the waste stream

discharged by the Drain.”

28a

Appendix A

point source discharges that would potentially foreclose

application of the statutory exemption.

Third, accumulated and remobilized sediment in the

Drain is not an additional point source discharge from

activities unrelated to crop production. According to

Plaintiffs, sediment in the Drain comes from either “dust,

wind-blown plant debris, algae, and cattails” or from the

return flow from the Bypass discharged into the Drain.

Dust and other wind-blown particles do not originate from

a discrete conveyance and thus do not constitute point

source discharges. The discharge from the Bypass into

the Drain is a discrete point source discharge, but the

Bypass’s conveyance of the Project’s irrigation return flow

to the Drain is clearly part of the Project’s overall function

and operation and is related to crop production. Therefore,

pollution from sediment accumulated and remobilized in

the Drain does not raise a genuine dispute of material

fact because it originates from nonpoint sources or from

a point source related to crop production.

Lastly, runoff and groundwater from the land occupied

by the Vega Solar Project do not constitute point source

discharges. The alleged runoff is based on rainwater

falling onto the site and water from solar panel washing.

The alleged groundwater seepage involves natural

upwelling of “older and deeper groundwater” into the tile

drain system underneath the Vega site.6 As discussed,

both runoff and groundwater seepage are nonpoint

6. The tile drain system underneath the Vega site long predates

the Vega Solar Project and continues to serve adjacent farmland.

29a

Appendix A

sources of pollution. In addition, runoff from the Vega site

does not create a genuine dispute of material fact because

Defendants’ uncontroverted evidence establishes that the

runoff could not have penetrated eight feet into the ground

to reach the Project’s subsurface tile drains. Defendants’

expert testified that between the Vega solar panel

washings and rainfall, runoff flows penetrated less than

an inch into the soil. Defendants also presented evidence of

model simulations demonstrating that during the relevant

period—that is, after the Vega site was converted from

its previous agricultural use to its solar use—rainwater

and surface runoff would not have percolated deep enough.

Plaintiffs’ expert failed to rebut this evidence. In short,

Plaintiffs failed to dispute Defendants’ evidence that there

was no point source discharge of a pollutant from the Vega

Solar Project.

We agree with the district court that no genuine

dispute of material fact exists as to whether the four

sources of pollutants “constitute nonpoint sources or

whether they stem from ‘activities related to crop

production.’”

III. CONCLUSION

The CWA exempts “discharges composed entirely of

return flows from irrigated agriculture” from the NPDES

permitting scheme. 33 U.S.C. § 1342(l)(1). We hold that the

irrigated agriculture exemption applies when return flows

do not contain additional point source discharges from

activities unrelated to crop production. In the absence of

a genuine dispute of material fact, we affirm the district

30a

Appendix A

court’s conclusion that Defendants have met their burden

of establishing that the irrigation return flow exemption

under 33 U.S.C. § 1342(l)(1) of the CWA applies to the

Project.

AFFIRMED.

31a

Appendix B OF THE UNITED

APPENDIX B — JUDGMENT

STATES DISTRICT COURT, EASTERN DISTRICT

OF CALIFORNIA, FILED FEBRUARY 21, 2023

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

CASE NO: 2:11−CV−02980−DAD−CKD

PACIFIC COAST FEDERATION OF

FISHERMEN’S ASSOCIATIONS, et al.,

UNITED STATES BUREAU

OF RECLAMATION, et al.,

JUDGMENT IN A CIVIL CASE

Decision by the Court. This action came before the Court.

The issues have been tried, heard or decided by the judge

as follows:

IT IS ORDERED AND ADJUDGED

THAT JUDGMENT IS HEREBY ENTERED IN

ACCORDANCE WITH THE COURT’S ORDER

FILED ON 02/17/2023

ENTERED: February 21, 2023

32a

Appendix

C UNITED STATES

APPENDIX C — ORDER

OF THE

DISTRICT COURT FOR THE EASTERN DISTRICT

OF CALIFORNIA, FILED FEBRUARY 21, 2023

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

No. 2:11-cv-02980-DAD-CKD

PACIFIC COAST FEDERATION OF

FISHERMEN’S ASSOCIATIONS, et al.,

Plaintiffs,

ERNEST A. CONANT, et al.,

Defendants,

and

GRASSLAND WATER DISTRICT,

Intervenor Defendant.

Filed February 21, 2023

ORDER DENYING PLAINTIFFS’ MOTION FOR

SUMMARY JUDGMENT AND GRANTING IN

PART AND DENYING IN PART DEFENDANTS’

MOTIONS FOR SUMMARY JUDGMENT

This matter came before the court on January 31, 2023

for a hearing on three motions for summary judgment.

33a

Appendix C

The first motion was filed on behalf of defendants Ernest

A. Conant (the Regional Director of the U.S. Bureau

of Reclamation),1 and the U.S. Bureau of Reclamation

(together, “federal defendants”). (Doc. No. 219.) The

second motion was filed on behalf of defendant San Luis

& Delta-Mendota Water Authority (“the Authority”) and

intervenor defendant Grassland Water District (together,

“local defendants”). (Doc. No. 221.) The third motion was

filed on behalf of plaintiffs: the Pacific Coast Federation

of Fishermen’s Associations, the California Sportfishing

Protection Alliance, Friends of the River, San Francisco

Crab Boat Owners Association, the Institute for Fisheries

Resources, and Felix Smith (collectively, “plaintiffs”).

(Doc. No. 226.) At the hearing, attorney Stephan Volker

appeared on behalf of plaintiffs; attorney Martin

McDermott appeared on behalf of federal defendants; and

attorneys Julie Fieber, Ellen Wehr, and Diane Rathmann

appeared on behalf of local defendants. For the reasons

explained below, plaintiffs’ motion for summary judgment

will be denied; local defendants’ motion for summary

judgment will be granted in part and denied in part; and

federal defendants’ motion for summary judgment will

be granted in part.

1. Under Federal Rule of Civil Procedure 25(d), when a public

official who has been sued in their official capacity ceases to hold

office while the action is pending, the public officer’s successor is

automatically substituted as a party. Thus, although the docket

states that Donald R. Glaser is the Regional Director of the U.S.

Bureau of Reclamation, the court will direct the Clerk of the

Court to update the docket to reflect that Ernest A. Conant has

been substituted as the current holder of the position of Regional

Director of the U.S. Bureau of Reclamation. (Doc. No. 220 at 1 n.1.)

34a

Appendix C

BACKGROUND

This case arises from a water project in California’s

Central Valley that collects water used to irrigate

agricultural land through an underground capture system

and then moves the collected drainage water through

a concrete-lined conveyance for many miles before it

dispenses into a wetland.

“Irrigation and drainage are inherently linked. 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.”

Pac. Coast Fed’n of Fishermen’s Ass’ns v. Glaser, 945 F.3d

1076, 1080 (9th Cir. 2019). The Grasslands Bypass Project

(“Project”)—the subject of this litigation—was created for

this purpose. Id. The Project, which is jointly administered

by defendants, “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[s] it to surrounding waters.” Id. (internal quotations

omitted).

In this action, plaintiffs allege that defendants are

discharging pollutants through the Project that end

up in the San Joaquin River and ultimately the San

Francisco Bay Delta without complying with the permit

requirements under the Federal Water Pollution Control

Act, 33 U.S.C. §§ 1251, et seq. (“Clean Water Act” or “the

Act”). (Doc. No. 71 at ¶¶ 1–3.) To remedy this alleged

violation, plaintiffs seek orders from this court declaring

that defendants have failed to comply with the Act’s

35a

Appendix C

permitting system; granting injunctive relief requiring

defendants’ compliance with the Act; imposing civil

penalties pursuant to the Act; and an award of costs,

attorneys’ fees, and expert fees. (Id. at ¶ 3.)

A. Undisputed Facts2

The Project drains the Grassland Drainage Area

(“Drainage Area”). (Doc. No. 228-1 at ¶ 1.) The Drainage

2. As an initial matter, in plaintiffs’ response to local

defendants’ statement of undisputed facts (which federal

defendants joined), plaintiffs purport to dispute nearly all of the

facts put forth by defendants in that statement. (See Doc. Nos.

220 at 6; 228-1.) In several instances (e.g., Doc. No. 228-1 at ¶¶ 17,

26, 32, 37, 38), plaintiffs purport to dispute a fact without citing

any evidence at all, thereby failing to satisfy the requirements of

Federal Rule of Civil Procedure 56(c). In even more instances (e.g.,

Doc. No. 228-1 at ¶¶ 6, 23, 27, 44), the evidence cited by plaintiffs is

not “sufficiently specific from which to draw reasonable inferences

about other material facts” or fails to constitute “significantly

probative evidence tending to” dispute the particular fact asserted.

Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221–22 (9th Cir.

1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–

50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (“If evidence is merely

colorable or is not significantly probative, summary judgment may

be granted.”) (internal citations omitted). Frequently, plaintiffs

put forth two different, lengthy string citations of evidence to

dispute facts throughout their response to defendants’ statement of

undisputed facts, but those string citations often fail to address the

particular fact at issue. (See, e.g., Doc. No. 228-1 at ¶¶ 6, 11, 22, 23, 25,

35, 36.) In other instances, the court has narrowed a fact asserted to

the portion that is undisputed. (See, e.g., id. at ¶¶ 46, 47.) The court

has closely scrutinized the evidence put forth by defendants and

plaintiffs for genuine disputes and thus finds the following facts

used in this order are undisputed unless otherwise noted.

36a

Appendix C

Area includes approximately 97,400 acres located in

Merced and Fresno counties on the west side of the San

Joaquin River within the Delta-Mendota sub-basin of the

San Joaquin Valley. (Id.) At least 30,800 acres within the

Drainage Area have subsurface agricultural tile drainage

systems. (Id. at ¶ 3.) Water that is collected through the

subsurface tile drains in the Drainage Area is conveyed

through the Grassland Bypass Channel (“Bypass”), then

into the San Luis Drain (“Drain”), where it travels 27

miles until it ultimately flows into a wetland referred to

as “Mud Slough.” (Id. at ¶¶ 2, 3.) Mud Slough is a wetland

adjacent to national and state wildlife refuges and is a

water of the United States. (Doc. No. 229-2 at ¶¶ 9, 67.)

Mud Slough empties into the San Joaquin River, which,

in turn, flows into the Sacramento-San Joaquin River

Delta, and ultimately into the San Francisco Bay. (Id. at

¶ 8.) The water conveyed from the Drainage Area and

into Mud Slough contains pollutants, such as selenium

and salt, that are naturally present in the area soils. (Doc.

Nos. 228-1 at ¶ 2; 229-2 at ¶ 65.) The Project does not

have a National Pollutant Discharge Elimination System

(“NPDES”) permit. (Doc. No. 229-2 at ¶ 97); see also Env’t

Def. Ctr., Inc. v. U.S. E.P.A., 344 F.3d 832, 841 (9th Cir.

2003) (noting that NPDES permit are issued under the

Act and require “dischargers to comply with technologybased pollution limitations”).

The land in the Drainage Area consists of active

farmland, retired farmland, and non-irrigable land used

for public infrastructure, businesses, and residences

(among other uses); however, there are no lands within

the Drainage Area that have never been irrigated. (Doc.

37a

Appendix C

Nos. 228-1 at ¶ 6; 229-1 at ¶ 119.) For example, the Vega

Solar Project—completed in the summer of 2015—sits

upon 139 acres3 of retired farmland within the Drainage

Area that had previously been irrigated until 2014. (Doc.

No. 228-1 at ¶ 15.) The tile drains beneath the Vega Solar

Project are eight feet below the surface and also serve

surrounding farmland. (Id.) This is representative of how

the tile drains operate more generally; the drains are not

limited to particular fields but extend across multiple

fields, land use types, and land ownerships and collect

all of the captured water into common sumps. (Doc. Nos.

228-1 at ¶¶ 3, 16; 229-2 at ¶ 121.) After the collected water

leaves the Drainage Area, there are no sumps, pumps,

culverts, pipes, or similar facilities that discharge surface

water to the Drain. (Doc. No. 228-1 at ¶ 23.)

The 27-mile-long Drain is a concrete lined canal that

was intentionally designed with “weep” holes or valves on

its bottom surface to alleviate below-ground hydrostatic

pressure that would otherwise damage or destroy it by

popping up or cracking the concrete lining. (Id. at ¶ 34.)

The more-than-50-year-old Drain also has areas where

the concrete lining is cracked or buckled thereby allowing

additional interface with the surrounding groundwater

table. (Id.) Typically, seepage of groundwater travels into

the Drain in the winter when the groundwater table is high,

3. Although plaintiffs fully admit this fact, in another portion

of their response to defendants’ statement of undisputed facts,

plaintiffs contend that the Vega Solar Project occupies 178.3 acres

of retired farmland. (Doc. No. 228-1 at ¶ 6.) The court notes this

potential dispute but does not find that it is material for purposes

of resolving the pending motions.

38a

Appendix C

and out of the Drain in the summer when the groundwater

table is low. (Id. at ¶ 27.) This groundwater seepage into

the Drain is the result of passive groundwater flow. (Id.)

Groundwater seepage also is not unique to the Drain. Most

agricultural drainage channels are built into the ground

and, whether concrete lined or not, have some interface

with the groundwater table via seepage. (Id. at ¶¶ 26,

38.) In other words, seepage is inevitable for agricultural

drains. (Id. at ¶ 26.) Most importantly, none of the seepage

into the Drain comes from adjacent industrial activities,

nor does it contain pollution from industrial dischargers.

(Id. at ¶ 32.) Between 1997 and 2015, seepage into the

Drain accounted for some of the selenium pollution in the

Drain. (Id. at ¶ 29.) In addition to seepage, the Drain also

has been accumulating sediments since it was originally

constructed. (Doc. No. 229-2 at ¶ 38.) These sediments

come from dust, wind-blown plant debris, algae, cattails,

and suspend sediments in the return flows. (Id.) This

sediment is periodically removed from the Drain. (Doc.

No. 228-1 at ¶ 48.)

B. Procedural Background

Plaintiffs initiated this action pursuant to the citizen

suit enforcement provision of the Act on November 9,

2011. (Doc. Nos. 1, 2.) On September 16, 2013, following

cross-motions for judgment on the pleadings by federal

defendants and plaintiffs, the court dismissed plaintiffs’

complaint with leave to amend. (Doc. No. 70.) On October 7,

2013, plaintiffs filed the operative first amended complaint

(“FAC”). (Doc. No. 71.) The FAC asserts a single claim

for relief alleging violation of the Act based on several

theories of liability. (Id. at ¶ 41.)

39a

Appendix C

Shortly thereafter, federal defendants and the

Authority each filed a motion to dismiss plaintiffs’ FAC

and the court granted those motions, in part, on March

28, 2014. (Doc. No. 87.) Specifically, the court found that

plaintiffs had pled sufficient facts to state a claim for

a violation of the Act based on the allegation that the

Project operated by defendants collects and discharges a

substantial quantity of contaminated groundwater from

fallow land, which is land retired from agricultural use.

(Doc. No. 87 at 7.) However, the court struck all remaining

allegations in the FAC that pertained to plaintiffs’ other

theories of liability. (Doc. Nos. 87 at 8; 138 at 13.)

On October 16, 2015, the parties filed cross-motions

for summary judgment. (Doc. Nos. 109, 111, 112.) On

September 2, 2016, the court issued an order denying

plaintiffs’ motion for summary judgment and granting in

part defendants’ motions for summary judgment. (Doc.

No. 138.) The court also denied subsequent motions by

plaintiffs to amend their FAC and for reconsideration of

its order ruling on the summary judgment motions. (Doc.

Nos. 162, 175). On August 31, 2017, plaintiffs dismissed

their only remaining theory of liability before trial because

plaintiffs conceded that as a result of the court’s rulings

they were “unlikely to succeed” on that claim at trial.

(Doc. No. 182 at 3.) Once judgment was entered, plaintiffs

filed a notice of appeal to the Ninth Circuit on October 18,

2017. (Doc. No. 184.)

A little less than two years later, on September

9, 2019, the Ninth Circuit issued a decision reversing

this district court’s order on summary judgment and

40a

Appendix C

remanding the case back to this court. (Doc. Nos. 188,

189, 190.) The Ninth Circuit held that this district

court had erred, in part, in its interpretation of an

exception to the Act’s NPDES permitting requirement

“for discharges composed entirely of return flows from

irrigated agriculture.” (Doc. No. 190 at 10–17) (quoting

33 U.S.C. § 1342(l)(1)). The Ninth Circuit also disagreed

with this court’s decision to strike plaintiffs’ alternative

theories of liability. (Id. at 19–20.) The Ninth Circuit

found that this court had erred “by striking [plaintiffs’]

theories of liability ‘based on discharges from highways,

residences, seepage into the [Drain] from adjacent lands,

and sediments from within the [Drain]’ from Plaintiffs’

motion for summary judgment” because those claims were

in fact encompassed by the allegations in the FAC under

Federal Rule of Civil Procedure 8’s pleading standard.

(Id. at 19.) As a result, the Ninth Circuit remanded

these stricken claims along with an additional claim that

plaintiffs had voluntarily dismissed—regarding the Vega

Solar Project—to be reconsidered by this court under the

correct interpretation of § 1342(l)(1). (Id. & n.3.)

In this court’s first post-remand order, on April 7,

2020, the court authorized a discovery plan in anticipation

of the parties “re-litigating the original summary

judgment motions” and limiting discovery to the time

period of September 10, 2006 to July 31, 2015. (Doc. No.

197 at 2.) Several months later, on October 13, 2020,

the court granted Grassland Water District’s motion to

intervene as a defendant in this action. (Doc. No. 204.)

Finally, on March 3, 2022, federal defendants and

local defendants each filed their own motions for summary

41a

Appendix C

judgment. (Doc. Nos. 219, 221.) On May 27, 2022, plaintiffs

separately filed a motion for summary judgment and a

single opposition addressing both of the two pending

motions for summary judgment filed on behalf of the

defendants. (Doc. Nos. 226, 228.) On July 22, 2022,

federal defendants and local defendants each filed their

own briefs that served both as oppositions to plaintiffs’

pending motion for summary judgment and replies in

support of their own pending motions. (Doc. Nos. 229,

230.) On September 9, 2022, plaintiffs filed two separate

reply briefs thereto. (Doc. Nos. 236, 237.) After this case

was reassigned to the undersigned on August 25, 2022,

the hearing on the pending cross-motions for summary

judgment was specially set for January 31, 2023. (See Doc.

Nos. 232, 239).

LEGAL STANDARD

Summary judgment is appropriate when the moving

party “shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

In summary judgment practice, the moving party

“initially bears the burden of proving the absence of a

genuine issue of material fact.” In re Oracle Corp. Sec.

Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L.

Ed. 2d 265 (1986)). The moving party may accomplish

this by “citing to particular parts of materials in the

record, including depositions, documents, electronically

stored information, affidavits or declarations, stipulations

42a

Appendix C

(including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials,”

or by showing that such materials “do not establish the

absence or presence of a genuine dispute, or that an

adverse party cannot produce admissible evidence to

support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). When the

non-moving party bears the burden of proof at trial, “the

moving party need only prove that there is an absence of

evidence to support the non-moving party’s case.” Oracle

Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see

also Fed. R. Civ. P. 56(c)(1)(B). Indeed, summary judgment

should be entered, after adequate time for discovery and

upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the

burden of proof at trial. See Celotex, 477 U.S. at 322. “[A]

complete failure of proof concerning an essential element

of the nonmoving party’s case necessarily renders all other

facts immaterial.” Id. at 322–23. In such a circumstance,

summary judgment should be granted, “so long as

whatever is before the district court demonstrates that

the standard for the entry of summary judgment . . . is

satisfied.” Id. at 323.

If the moving party meets its initial responsibility,

the burden then shifts to the opposing party to establish

that a genuine issue as to any material fact actually does

exist. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d

538 (1986). In attempting to establish the existence of

this factual dispute, the opposing party may not rely

upon the allegations or denials of its pleadings but is

43a

Appendix C

required to tender evidence of specific facts in the form of

affidavits or admissible discovery material in support of

its contention that the dispute exists. See Fed. R. Civ. P.

56(c)(1); Matsushita, 475 U.S. at 586 n.11; Orr v. Bank of

Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial

court can only consider admissible evidence in ruling on

a motion for summary judgment.”). The opposing party

must demonstrate that the fact in contention is material,

i.e., a fact that might affect the outcome of the suit under

the governing law, see Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986);

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,

809 F.2d 626, 630 (9th Cir. 1987), and that the dispute

is genuine, i.e., the evidence is such that a reasonable

jury could return a verdict for the non-moving party, see

Anderson, 477 U.S. at 250; Wool v. Tandem Computers,

Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

In the endeavor to establish the existence of a factual

dispute, the opposing party need not establish a material

issue of fact conclusively in its favor. It is sufficient that

“the claimed factual dispute be shown to require a jury

or judge to resolve the parties’ differing versions of the

truth at trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the

“purpose of summary judgment is to ‘pierce the pleadings

and to assess the proof in order to see whether there is

a genuine need for trial.’” Matsushita, 475 U.S. at 587

(citations omitted).

“In evaluating the evidence to determine whether

there is a genuine issue of fact,” the court draws “all

inferences supported by the evidence in favor of the

44a

Appendix C

non-moving party.” Walls v. Cent. Contra Costa Cnty.

Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is the

opposing party’s obligation to produce a factual predicate

from which the inference may be drawn. See Richards v.

Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D.

Cal. 1985), aff’d, 810 F.2d 898, 902 (9th Cir. 1987). To

demonstrate a genuine issue, the opposing party “must

do more than simply show that there is some metaphysical

doubt as to the material facts. . . . Where the record taken

as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no ‘genuine issue for trial.’”

Matsushita, 475 U.S. at 587 (citation omitted).

Finally, where, as here, “parties submit cross-motions

for summary judgment, ‘[e]ach motion must be considered

on its own merits.’” Fair Hous. Council of Riverside

Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th

Cir. 2001) (citation omitted); see also Tulalip Tribes of

Wash. v. Wash., 783 F.3d 1151, 1156 (9th Cir. 2015). “In

fulfilling its duty to review each cross-motion separately,

the court must review the evidence submitted in support

of each cross-motion.” Riverside Two, 249 F.3d at 1136.

The parties’ assertions that there are no disputed issues

“does not vitiate the court’s responsibility to determine

whether disputed issues of material fact are present. A

summary judgment cannot be granted if a genuine issue

as to any material fact exists.” Id. (quoting United States

v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978)).

ANALYSIS

The court will first address local defendants’ challenge

to plaintiffs’ Article III standing to maintain this action.

45a

Appendix C

The court will then turn to the merits of plaintiffs’ Clean

Water Act claim.

A. Standing

To establish Article III standing, “plaintiff must have

(1) suffered an injury in fact, (2) that is fairly traceable

to the challenged conduct of the defendant, and (3) that

is likely to be redressed by a favorable judicial decision.”

Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S. Ct. 1540,

194 L. Ed. 2d 635 (2016); see also Bates v. United Parcel

Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007) (en banc). The

redressability prong requires that plaintiff to show that

the relief sought is both substantially likely to redress the

claimed injuries and within the district court’s power to

award. See Juliana v. United States, 947 F.3d 1159, 1170

(9th Cir. 2020). “[A] plaintiff must demonstrate standing

separately for each form of relief sought.” Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.

167, 185, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000); see also

Bates, 511 F.3d at 985.

Local defendants argue that plaintiffs have not

satisfied the redressability requirement of Article III

standing. (Doc. No. 221-1 at 10–11.) Specifically, local

defendants contend that the Project is regulated under a

“waste discharge requirement order (‘WDR’) issued by

the State of California pursuant to the [Act],” and due to

the WDR, an order by this court “[r]equiring an NPDES

permit would achieve nothing more” than what the

WDR already achieves. (Id. at 6–7, 11.) Local defendants

also maintain that under a use agreement governing

46a

Appendix C

the operations of the Project, “all agricultural related

subsurface discharges through the Drain terminated

December 31, 2019” and “since April 2015, all discharges

into the Drain have been limited to those related to storm

events.” (Id. at 11.) Thus, local defendants maintain that

plaintiffs’ claim is now “moot.” (Doc. No. 229 at 9.)

The court is unpersuaded and finds that local

defendants’ argument in this regard is unavailing for

several reasons. First, even with the cessation of “all

agricultural related subsurface discharges,” local

defendants do not contend that all discharges into the

Drain have ceased dispensing into Mud Slough. Yet,

plaintiffs seek an order requiring that an NPDES

permit be obtained for any discharge from the Drain

into Mud Slough, i.e., the bases underlying plaintiffs’

allegation that the Act is being violated do not depend on

the discharge into Mud Slough containing “agricultural

related subsurface discharges.” (See Doc. No. 71 at 17.)

As plaintiffs argue in their reply brief, an NPDES permit

“would remedy the Drain’s continuing discharge of

pollutants from lands not used for irrigated agriculture

into Mud Slough” by imposing water quality limits on

the pollutants stemming from non-agricultural sources.

(Doc. No. 236 at 7) (emphasis added). If this court were

to agree with plaintiffs and find that the discharges

from the Drain are non-agricultural, then there would

be a substantial likelihood that an NPDES permit would

remedy the alleged injury of unpermitted discharges of

pollutants into Mud Slough. See Deschutes River All. v.

Portland Gen. Elec. Co., 1 F.4th 1153, 1158–59 (9th Cir.

2021) (finding redressability satisfied under the Act when

47a

Appendix C

plaintiffs sought to compel compliance with a permit,

which plaintiff “interpret[ed] as requiring compliance

with particular water quality criteria,” despite defendant’s

contention that plaintiff had “not explained what available

relief would improve water quality”).

Second, when evaluating whether the Article III

standing elements are satisfied, the court must look

at the facts as they existed at the time the complaint

was filed. See Nat. Res. Def. Council v. U.S. Env’t Prot.

Agency, 38 F.4th 34, 56 (9th Cir. 2022). Here, there is

no dispute that plaintiffs’ claim was redressable when

the operative complaint in this action was filed, and the

voluntary cessation of certain discharges into the Drain

does not negate plaintiffs’ explicit right to enforce the Act’s

requirements. See S.F. Baykeeper v. City of Sunnyvale,

627 F. Supp. 3d 1102, 2022 U.S. Dist. LEXIS 164056, 2022

WL 4138648, at *9 (N.D. Cal. Sept. 12, 2022) (rejecting the

defendants’ challenge to redressability where plaintiffs

were seeking injunctive relief regarding remediation and

the defendants contended that they were in the process

of implementing a proposed remedial plan); see also

Nat. Res. Def. Council, 38 F.4th at 56 (holding that the

organizational plaintiff’s Endangered Species Act claim

satisfied redressability even though the EPA had issued

a biological evaluation during litigation because when

plaintiff filed suit, it was unclear how the EPA would

respond, and the plaintiff’s current ability to seek a more

aggressive deadline was sufficient to establish standing).

Here, the local defendants’ challenge is also ineffectual in

light of this court’s order limiting the relevant time period

for the pending motions to September 10, 2006 to July 31,

48a

Appendix C

2015, (Doc. No. 197 at 2), a fact local defendants did not

dispute at the hearing.

Finally, as plaintiffs contended at the hearing on

the pending motions, their underlying claim seeking

that an NPDES permit be required is still redressable

notwithstanding local defendants’ contractual agreements

or the WDRs because an NPDES permit provides certain

procedural safeguards that have not otherwise been

imposed. See, e.g., 33 U.S.C. § 1342(b) (requiring that

NPDES permits must be preceded by public notice and

an “opportunity for a public hearing”); see also 40 C.F.R.

§ 123.25 (imposing various procedural requirements on

state-run permit programs). This is also an adequate basis

to establish redressability for a claim brought under the

Act. See Or. Nat. Desert Ass’n v. Dombeck, 172 F.3d 1092,

1094 (9th Cir. 1998) (holding that a “procedural right of

certification under [33 U.S.C.] § 1341” was sufficient to

establish redressability for a Clean Water Act claim).4

4. Defendants also rely on the district court’s decision in Coal.

for a Sustainable Delta v. Carlson, No. 1:08-cv-00397-OWW-GSA,

2008 U.S. Dist. LEXIS 63394, 2008 WL 2899725 (E.D. Cal. July

24, 2008) in support of their contention that plaintiffs have not

established redressability. (Doc. No. 221-1 at 10.) However, the

decision in Carlson is distinguishable from this case. There, the

district court found that plaintiffs lacked standing as to their

Endangered Species Act claim because the relief they sought

(the invalidation of fishing regulations) was insufficient on its

own to redress the alleged harm (that listed species were being

harmed). 2008 U.S. Dist. LEXIS 63394, 2008 WL 2899725 at *10.

The district court in Carlson identified other critical factors that

were unconnected to the specific relief sought by the plaintiffs in

that case, such as water deliveries being monitored in a separate

49a

Appendix C

In addition to plaintiffs’ requested relief of requiring

defendants to obtain an NPDES permit for the Project,

plaintiffs also seek the imposition of civil penalties and

an injunction requiring remedial activities. (See Doc. No.

71 at 17.) At the hearing, local defendants did not dispute

plaintiffs standing to pursue those remedies, which are

all within the court’s power to grant under the Act. See

33 U.S.C. § 1365(a); Friends of the Earth, 528 U.S. at 188

(holding that a citizen suit brought under the Act satisfies

the redressability requirement as to civil penalties “for

violations that are ongoing at the time of the complaint

and that could continue into the future if undeterred”)

(emphasis added).

Accordingly, the court concludes that plaintiffs have

satisfied their “relatively modest” burden of establishing

the redressability requirement for Article III standing to

seek an order requiring compliance with the Act, including

its NPDES permit program. Deschutes River All., 1 F.4th

at 1159 (citation omitted); see also Juliana, 947 F.3d at 1170

(“Redress need not be guaranteed, but it must be more

than ‘merely speculative.’”) (citation omitted).

court action and non-party federal agencies changing their

conclusions regarding the status of listed species. 2008 U.S. Dist.

LEXIS 63394, [WL] at *9. Here, by contrast, if plaintiffs obtain

an order requiring that defendants secure an NPDES permit for

the Project, the effectiveness of that permit would not be limited

by the WDRs; rather, the discharge from the Drain into Mud

Slough would be the subject of additional regulation and related

procedural safeguards associated with that regulation (the relief

plaintiffs seek). Thus, the court finds that the decision in Carlson

is inapposite.

50a

Appendix C

B. Clean Water Act

Congress enacted the Clean Water Act to “restore and

maintain the chemical, physical, and biological integrity

of the Nation’s waters” through limiting pollution from

“point sources.” Nw. Env’t Def. Ctr. v. Brown, 640 F.3d

1063, 1070 (9th Cir. 2011), rev’d on other grounds sub

nom. Decker v. Nw. Env’t Def. Ctr., 568 U.S. 597, 133 S.

Ct. 1326, 185 L. Ed. 2d 447 (2013). “A cornerstone of the

Clean Water Act is that the ‘discharge of any pollutant’

from a ‘point source’ into navigable waters of the United

States is unlawful unless the discharge is made according

to the terms of an NPDES permit obtained from either

the United States Environmental Protection Agency

(“EPA”) or from an authorized state agency.” Ass’n to

Protect Hammersley, Eld, & Totten Inlets v. Taylor Res.,

299 F.3d 1007, 1009 (9th Cir. 2002).

The Act defines the terms used in its provisions as

follows. “Discharge of a pollutant” is defined as “any

addition of any pollutant to navigable waters from any

point source.” 33 U.S.C. § 1362(12). A “pollutant” is defined

broadly, including, inter alia, “heat, . . . rock, sand, cellar

dirt . . . and agricultural waste discharged into water.” 33

U.S.C. § 1362(6). “Navigable waters” means “the waters of

the United States.” 33 U.S.C. § 1362(7). A “point source”

is “any discernible, confined and discrete conveyance,

including but not limited to any pipe, ditch, channel,

tunnel, conduit, well, [or] discrete fissure . . . [but] does

not include agricultural stormwater discharges and return

51a

Appendix C

flows from irrigated agriculture.”5 33 U.S.C. § 1362(14).

In addition to this definitional exclusion of irrigated

agriculture return flows from the term “point source,”

Congress incorporated a nearly identical exception under

its NPDES permitting provisions, which provides that “[t]

he Administrator shall not require a permit under this

section for discharges composed entirely of return flows

from irrigated agriculture . . . .” 33 U.S.C. § 1342(l)(1).6

The Act can be enforced through a citizens suit’s

provision, which allows lawsuits to be initiated by “a

person or persons having an interest which is or may

be adversely affected.” 33 U.S.C. §§ 1365(a), (g). These

citizen suits can impel future compliance with the Act by

obtaining relief from district courts, including injunctive

relief and civil penalties payable to the United States

Treasury. See Friends of the Earth, 528 U.S. at 173 (citing

33 U.S.C. § 1365(a)). To establish a violation of the Act,

5. Although not defined in the Act, “nonpoint source pollution

is . . . widely understood to be the type of pollution that arises from

many dispersed activities over large areas, and is not traceable

to any single discrete source. Because it arises in such a diffuse

way, it is very difficult to regulate through individual permits.”

League of Wilderness Defs. v. Forsgren, 309 F.3d 1181, 1184 (9th

Cir. 2002).

6. Although not defined in the Act, “nonpoint source pollution

is . . . widely understood to be the type of pollution that arises from

many dispersed activities over large areas, and is not traceable

to any single discrete source. Because it arises in such a diffuse

way, it is very difficult to regulate through individual permits.”

League of Wilderness Defs. v. Forsgren, 309 F.3d 1181, 1184 (9th

Cir. 2002).

52a

Appendix C

a plaintiff in a citizen suit “must prove that defendants

(1) discharged, i.e., added (2) a pollutant (3) to navigable

waters (4) from (5) a point source.” Pac. Coast Fed’n of

Fishermen’s Ass’ns v. Glaser, 945 F.3d 1076, 1083 (9th

Cir. 2019) (“PCFFA”), (citation omitted); see also 33

U.S.C. § 1311(a). If a plaintiff carries their initial burden

of establishing the elements of a violation under the Act,

then the defendant bears the burden of proving that an

exception provided for in the Act applies. See PCFFA, 945

F.3d at 1083.

Here, based on the evidence before the court on

summary judgment, plaintiffs have established a violation

under the Act. The specific violation identified by plaintiffs

is the addition of water containing pollutants stemming

from the Project being dispensed into Mud Slough without

an NPDES permit, as required. (Doc. Nos. 226-1 at 16–17;

228 at 11–12; 236 at 9.) First, the undisputed facts establish

that the Project “conveys water from the [Drainage

Area] through the [Bypass] to the [Drain] and then to

Mud Slough,” which is considered a water of the United

States. (Doc. Nos. 228-1 at ¶ 2; 229-2 at ¶¶ 8, 9.) It is also

undisputed that the water conveyed by the Project and

discharged into Mud Slough contains pollutants including

selenium, salt, and boron. (Doc. No. 229-2 at ¶¶ 65, 67,

79.) Finally, it is undisputed that the Project, jointly

administered by the defendant Authority and the federal

defendants, does not have an NPDES permit. (Doc. Nos.

228-1 at ¶ 2; 229-2 at ¶ 97.) Thus, plaintiffs have shown

that pollutants (selenium, salt, boron, among others) are

being added to a navigable water (Mud Slough) from a

point source (the Project, and specifically, the Drain).

53a

Appendix C

Accordingly, plaintiffs have established a violation of the

Act.7

Defendants maintain that the violation is cured under

the exception provided by the Act in § 1342(l)(1). (Doc. Nos.

220 at 13; 221-1 at 12.) As noted, § 1342(l)(1) is an exception

to the Act’s permitting requirements for discharges that

are “composed entirely of return flows from irrigated

agriculture.” 33 U.S.C. § 1342(l)(1). Defendants contend

that they have carried their burden of establishing

that § 1342(l)(1) applies to the Project’s discharges,

thereby exempting the Project from the Act’s permitting

requirements. 8 (Doc. Nos. 220 at 13; 221-1 at 12.)

7. The court acknowledges that it would appear that part of

plaintiffs’ burden to establish a violation of the Act is to establish

that the Project is a “point source,” which, in its statutory

definition, requires that the Project “not include . . . return flows

from irrigated agriculture.” 33 U.S.C. § 1362(14). The district

court previously interpreted this definitional exclusion and the

related exception to the permitting requirement under § 1342(l)

(1), as a burden borne by plaintiffs in establishing a violation of

the Act. (See Doc. No. 138 at 15) (“The parties dispute only the

fourth element of plaintiffs Clean Water Act claim: whether the

Project is a point source or not.”). However, in its order reversing

this court’s prior ruling on summary judgment, the Ninth Circuit

rejected this interpretation of the burden of proof associated with

the definitional exclusion and exception. (Doc. No. 190 at 11–12.)

Accordingly, consistent with the Ninth Circuit’s decision, the court

now clarifies that defendants bear the burden of proof to establish

that the exception under § 1342(l)(1) applies here.

8. Local defendants’ pending motion primarily focuses on

application of the § 1342(l)(1) exception to the Project. Federal

defendants join in those arguments. (Doc. Nos. 220 at 6, 13–16, 21.)

54a

Appendix C

Plaintiffs counter that they have identified four

separate discharges of pollutants that have “commingled”

with the water collected in the Project and are ultimately

discharged into Mud Slough. (Doc. Nos. 226-1 at 17–25;

228 at 15–19; 236 at 9.) Due to this commingling of polluted

water streams, plaintiffs maintain that § 1342(l)(1) does

not apply to the Project because the water in the Drain

is no longer “composed entirely of return flows from

irrigated agriculture.” 33 U.S.C. § 1342(l)(1) (emphasis

added); (Doc. No. 236 at 8–9.)

Accordingly, to resolve the pending cross-motions for

summary judgment, the court must first determine the

scope of the agricultural return flows exception provided

by § 1342(l)(1).

The Agricultural Return Flows Exception (33

U.S.C. § 1342(l)(1))

Under § 1342(l)(1), “[t]he Administrator shall not

require a permit . . . for discharges composed entirely

of return flows from irrigated agriculture, nor shall the

Administrator directly or indirectly, require any State

to require such a permit.” 33 U.S.C. § 1342(l)(1). In its

The court assumes that the Grassland Water District is similarly

situated to the Authority because these local defendants submitted

a single motion for summary judgment. (Doc. No. 221-1.) Plaintiffs

also do not purport to differentiate between any defendants

in their pending motion. (See Doc. No. 226-1 at 7.) Thus, if the

§ 1342(l)(1) exception applies to the established violation here, all

defendants will be free from liability under the Act with regard

to the Project.

55a

Appendix C

order remanding this action, the Ninth Circuit provided

guidance as to how this statutory exception should be

construed. (See Doc. No. 190 at 11–17.)

First, although the Ninth Circuit found error with this

court’s interpretative method, it nevertheless held “that

the district court’s interpretation of the phrase [irrigated

agriculture] was accurate” and “that Congress intended

to define the term ‘irrigated agriculture’ broadly.” 9

(Doc. No. 190 at 16.) Specifically, this court previously

found that the phrase “discharges . . . from irrigated

agriculture” in § 1342(l)(1) “meant discharges that ‘do not

contain additional discharges from activities unrelated

to crop production.’” (Doc. No. 190 at 12–13, 17) (“The

text demonstrates that Congress intended for discharges

that include return flows from activities unrelated to crop

production to be excluded from the statutory exception,

thus requiring an NPDES permit for such discharges.”);

(Doc. No. 70 at 21) (explaining that “if pollutants from an

industrial factory, for example, were added to the flows

at issue here, they would disqualify the Project from the

exemption”).10

9. Contrary to plaintiffs’ counsel’s insistence at the hearing,

the Ninth Circuit squarely held in this case that the term

“irrigated agriculture” as used in § 1342(l)(1)’s exception is defined

“broadly,” notwithstanding the case law cited providing that, in

general, exceptions to the Act are to be construed narrowly. (See

Doc. No. 190 at 13–15.)

10. This example from this court’s prior order construing

the § 1342(l)(1) exception was taken from the EPA’s Final Rule

for NPDES Permit Application Regulations for Storm Water

Discharges. (Doc. No. 70 at 21) (citing 55 Fed. Reg. 47996 (Nov. 16,

56a

Appendix C

Next, the Ninth Circuit rejected this court’s

interpretation of “entirely” to mean “that § 1342(l)

(1) exempts discharges from the [Act]’s permitting

requirement unless a ‘majority of the total commingled

discharge’ is unrelated to crop production.” (Doc. No.

190 at 16) (finding that the district court’s “majority rule

interpretation misconstrued the meaning of ‘entirely,’ as

used in § 1342(l)(1)”). Instead, the Ninth Circuit held that

“‘[e]ntirely’ is defined as ‘wholly, completely, [or] fully’”

and reasoned that because there are “many activities

related to crop production that fall under the definition of

‘irrigated agriculture,’ Congress’s use of ‘entirely’ to limit

the scope of the statutory exception thus makes perfect

sense.” (Id.) (citation omitted).

The issue then for this court, is to determine whether

defendants have carried their burden of establishing on

summary judgment that the Project’s discharges “do not

contain additional discharges from activities unrelated to

crop production.” (Doc. No. 190 at 13.) Put another way, if

any of the four sources of pollutants identified by plaintiffs

do in fact exist and constitute an “additional discharge[]

from [an] activit[y] unrelated to crop production,” (id.),

then the Project’s discharges into Mud Slough would

no longer be “composed entirely of return flows from

1990)). In response to a comment regarding the interplay between

irrigation flows and stormwater discharges, the EPA explained

that a discharge from an industrial facility that is “included

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.