Summary of a Recent
Judicial Development in
Clean Water Act

District Court Lacks Jurisdiction
in CWA Action

Harrison M. Pittman
Staff Attorney

The United States District Court for the District of Oregon has ruled that it lacked subject matter jurisdiction under the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, to entertain an action in which a fruit processor was alleged to have violated the CWA when it used wastewater produced from its fruit processing facilities to irrigate several of its fruit fields. Hiebenthal v. Meduri Farms, No. 02-664-AS, 2002 WL 31971590 (D. Or. Nov. 27, 2002).

Meduri Farms ("Meduri"), defendant, operated two fruit processing plants that manufactured dried specialty fruits. See id. at *1. Meduri's system for disposing of the wastewater produced from its facilities "included screening the wastewater to remove solids, adjusting its pH level, and collecting the water in above-ground holding tanks." Id. (citation omitted). At one of its processing facilities, Meduri removed water from the holding tanks, placed it into a large holding pond, and used water from that holding pond to irrigate its prune orchards and grass fields. See id. At its other facility, Meduri used water directly from the above-ground holding tanks to irrigate its fields. See id.

On May 23, 2002, several plaintiffs brought an action against Meduri alleging that it "discharged and continues (or is reasonably likely to continue) to discharge pollutants from point sources to the waters of the United States without a National Pollutant Discharge Elimination System (NPDES) permit, a violation of Section 301(a) of the Clean Water Act." Id. at *2. (citing 33 U.S.C. § 1311(a)). The plaintiffs argued that Meduri's application of wastewater to its land required an NPDES permit because this "irrigation" resulted in "more wastewater on its fields than the crops can utilize, contaminating the local watershed." Id.

Meduri claimed that the plaintiffs' evidence did not sufficiently establish that it "continues or is likely to continue discharging pollutants from a point source in violation of the [CWA]." Id. It argued that the evidence offered by the plaintiffs did not show a real likelihood of repeated violations and, even if it did, return flows from irrigated agriculture are exempted from the CWA's NPDES requirements. See id. A Magistrate Judge determined that the plaintiffs failed to establish that Meduri "is reasonably likely to continue to discharge contaminants." Id. The Magistrate Judge did not address the issue of whether the CWA exempted Meduri's irrigation practices from the NPDES requirements. See id.

The district court stated that it did not agree with the Magistrate Judge's finding that the plaintiffs' evidence failed to establish that Meduri "was reasonably likely to continue to discharge contaminants." Id. The court noted that the plaintiffs submitted water samples from ditches around Meduri's property that indicated an elevated Biological Oxygen Demand and a soils scientist's report that concluded that "'incomplete soil-based treatment of oxygen demanding organic wastewater'" from Meduri's processing facilities applied to its crops "'has resulted in discharge of oxygen demanding constituents to surface waters.'" Id. The court stated that this evidence sufficiently supported the allegation that water draining from Meduri's land was polluted and that it was reasonably likely that this discharge would continue. See id. However, the court concluded that "because certain exemptions in the Clean Water Act apply, this court lacks jurisdiction, and the [Magistrate's] Findings and Recommendation is adopted on alternative grounds." Id.

The court explained that proving that runoff from Meduri's land was contaminated did not provide it with subject matter jurisdiction because the plaintiffs were also required to establish that there was (1) a discharge of a pollutant (2) without an NPDES permit (3) that derived from a point source. See id. (citing §§ 1311(a), 1342(a)(1)). The CWA provides that the "''discharge of a 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 the Environmental Protection Agency ("EPA") or from an authorized state agency.'" Id. (citation omitted). The CWA defines "point source" as "'any discernable, confined and discrete conveyance . . . . This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.'" Id. at *3 (quoting 33 U.S.C. § 1362(14)). The regulations implementing the CWA provide that an NPDES permit is not required for "'[a]ny introduction of pollutants from non point-source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures, range lands, and forest lands.'" Id. (quoting 40 C.F.R. § 122.3) (additional citation omitted).

The court rejected the plaintiffs' argument that the "irrigated agriculture" exemption did not apply to Meduri's operations because Meduri's possible overapplication of wastewater to its crops was industrial and non-agricultural in nature. See id. The court stated that under the CWA the regulation of irrigation return flows and agricultural runoff is a matter for states to consider, regardless of the quality of water used to irrigate particular fields. See id. (citation omitted). The court concluded that although the plaintiffs' evidence may establish that Meduri has applied wastewater to its fruit fields in excess of the crops' capacity to absorb the wastewater, that evidence "does not provide the court with federal subject matter jurisdiction under the Clean Water Act." Id.

The case was decided on Nov. 27, 2002; this summary was posted in Feb. 2003.