Summary of a Recent
Judicial Development in
Clean Water Act

Eleventh Circuit Rules That Rainfall
Removed By Pumping Is a "Stormwater Discharge" Under The Clean Water Act

Harrison M. Pittman
Staff Attorney

The United States Court of Appeals for the Eleventh Circuit has ruled that a Florida sugar cane farming operation was not required to obtain a National Pollutant Discharge Elimination System ("NPDES") permit to discharge water from its water management system into an adjacent lake. Fisherman Against Destruction of the Environment, Inc. v. Closter Farms, Inc., No. 01-11932, 2002 WL 1804952 (11th Cir. Aug. 7, 2002). The court determined that an NPDES permit was unnecessary because the pollutants discharged into the lake fell within the scope of the agricultural exemptions contained in the Clean Water Act, 33 U.S.C. §§ 1251-1376. Id. at *2.

The Clean Water Act ("CWA") requires "any party that discharges pollutants from a 'point source' into navigable waters to have a NPDES permit, unless the discharges fall into an exception." Id. at *1 (citing 33 U.S.C. §§ 1311, 1342). A point source is "'one which enters navigable waters from a discrete, defined source.'" Id. (quoting 33 U.S.C. §§ 1362(14)). The CWA exempts from the definition of point source "'agricultural stormwater discharges and return flows from irrigation agriculture.'" Id. at *2 (citing §§ 1362 (14)).

An environmental organization known as the Fisherman Against Destruction of the Environment ("FADE") brought a citizen suit against Closter Farms alleging that Closter Farms violated the CWA when it discharged pollutants into Lake Okeechobee without obtaining a NPDES permit. See id. (citing 33 U.S.C. § 1311(a)). Closter Farms was a Florida sugar cane operation that leased land located next to Lake Okeechobee. See id. The lease agreement required Closter Farms to operate a water management system that provided drainage for its agricultural lands as well as the drainage for several other adjacent properties. See id. This water management system removed the excess water from the irrigation canals that flowed through Closter Farms and pumped it into Lake Okeechobee. See id.

The district court ruled that, although Closter Farms discharged pollutants into Lake Okeechobee, the plaintiffs "'failed to establish the addition of a pollutant which would not be exempt'" from the permit requirements under the CWA. Id. FADE appealed that decision to the Eleventh Circuit arguing that the water discharged by Closter Farms did not fall within either the "stormwater discharge" nor "return flows from irrigation agriculture" exemptions, and therefore Closter Farms ha[d] been illegally discharging pollutants without a permit." Id.

The Eleventh Circuit stated that the "[e]vidence established that the sources of the water being pumped into Lake Okeechobee [were]: (1) rainfall, (2) groundwater withdrawn into the irrigation canals from the areas being drained, and (3) seepage from the lake." Id.

The court concluded that the district court's characterization of the discharged rainwater as "'agricultural stormwater discharge'" was a reasonable determination. See id. (citing Concerned Area Residents for the Env't v. Southview Farm, 34 F.3d 114, 121 (2d Cir. 1994) ("holding that 'agricultural stormwater discharge' exemption applies to any 'discharges [that] were the result of precipitation'")). The Eleventh Circuit explained that "[t]he fact that the stormwater is pumped into Lake Okeechobee rather than flowing naturally into the lake does not remove it from the exemption. Nothing in the language of the statute indicates that stormwater can only be discharged where it naturally would flow.'" Id. (citing 33 U.S.C. § 1362(14)).

The court also ruled that "the discharged groundwater and seepage can be characterized as 'return flow from irrigation agriculture.'" Id. The court explained that Closter Farms irrigated its crop through a process known as "flood irrigation." See id. "Flood irrigation" is a process where the irrigation canals are flooded in order to force water to flow from the canals and into the sugar cane fields. See id. The court stated that "[a]ll of the water that has seeped into the canals from Lake Okeechobee, either above or below ground, has been used in the irrigation process and therefore discharging it back into the lake is a 'return flow.' Flood irrigation is exempted from permitting requirements in the same manner as traditional irrigation." Id. (citing S. Rep. No. 95-370 (1970) reprinted in 1997 U.S.C.C.A.N. 4326, 4360)).

FADE also argued that Closter Farms' water management system did not qualify under the CWA agricultural exemptions because the "water management system stores rainwater and allows pollutants to settle before it pumps into Lake Okeechobee." Id. at *3, n.1. FADE relied on United States v. Frezzo Bros., Inc., 546 F.Supp. 713 (E.D. Pa. 1982), "for the proposition that the agricultural exception should only apply to water being used exclusively for farming." Id. at n.1. The Eleventh Circuit ruled that Frezzo Brothers was inapplicable because "[i]n that case, mushroom farmers were using part of their farm to produce compost primarily to sell to others, and the district court found that the agriculture exception did not apply to that aspect of the business," whereas "Closter Farms's only purpose in operating the water management system [was] to allow it to grow sugar cane." Id. at n.1. The circuit court stated that "[w]e find no error in the district court's determination that there were no non-exempt pollutants discharged into Lake Okeechobee originating from properties adjacent to Closter Farms because we conclude there is insufficient evidence that there were any such pollutants at all." Id.

This case summary was prepared in September, 2002.