A citizen group, oddly comprised mostly of fishermen and conservationists, has launched an assault on the Agricultural Exemption under the Clean Water Act (“CWA”) (33 U.S.C. sections 1251, et seq.) On June 7, 2011, this group issued a sixty day notice of intent to sue the U.S. Bureau of Reclamation and the San Luis & Delta-Mendota Water Authority for operation of the Grasslands Bypass and San Luis Drain. The citizen group has claimed that agricultural return flow, currently exempt from the permitting requirement under Section 402 of the CWA, is not exempt because it is “predominantly contaminated groundwater, not just irrigation return flows”.
The group is likely attempting to expand a recent U.S. Supreme Court ruling in South Florida Water Management Dist. V. Miccosukee Tribe of Indians (541 U.S. 95 (2004)) for the principle that any discharge that is not entirely composed of “agricultural return flows” is not exempt from the CWA Section 402 permitting process. However, in that case, the matter was remanded to the lower court for a determination as to whether the canal and wetlands involved were “distinct water bodies”.
Should the group succeed, this would result in a massive limitation to the “agricultural exemption” and could have far-reaching consequences.
The Group’s 60 Day Notice of Intent to Sue can be found at http://www.bwdlawgroup.com/ in the “News Room”