Drafting regulations is an enormous challenge, to say the least. I wrote some of the first drafts of the 2015 Waters of the United States (WOTUS) rule when I was at the Environmental Protection Agency (EPA), and it was one of the most challenging assignments I have ever had as a lawyer. Make the rule too simple, and gigantic loopholes emerge. Make it too specific, and compliance becomes overly burdensome. The right spot in the middle is an elusive target. Every new word in a regulation must be tested against reality and checked for internal inconsistencies and unintended consequences, and changes beget more drafting problems. Throw in litigation risk, policy compromises, and politics, and getting it all right can drive one mad. The ditch exemptions in the 2015 WOTUS rule and the proposed Trump administration replacement rule are a good example of this kind of drafting problem, and two recent decisions out of the Ninth Circuit, Pacific Coast Fed. of Fishermen’s Assoc.’s v. Glaser, 2019 WL 4230097 (9th Cir. 2019) and Nakia’ikai v. Nakatani, 2019 WL 2997774 (D. Haw. 2019) demonstrate that it is not a hypothetical one.
The Clean Water Act (CWA) regulates discharges of pollutants from point sources to waters of the United States. The regulatory definition of WOTUS has been the source of much litigation since 2015, when the Obama administration finalized its new WOTUS definition (the 2015 rule), and the rule is now the subject of another new rulemaking effort by the Trump administration to replace the 2015 rule. See 84 Fed. Reg. 4154 (Feb. 14, 2019) (revised definition of “Waters of the United States”). On September 9, 2019, EPA signed the rule repealing the 2015 rule, but lawsuits filed as of the date of this writing may result in a stay of the repeal. If the repeal rule is stayed, the 2015 rule will remain in effect in about half of the country. The other half is governed by the pre-2015 rule and the 2008 EPA/Corps Rapanos Guidance. If the repeal rule is not stayed, the entire country will be under the old Rapanos Guidance until the replacement rule is promulgated (and then litigated).
Both the 2015 rule and the replacement rule exempt certain ditches from the definition of WOTUS. Roadside stormwater ditches typically have not been considered to be WOTUS, but agricultural (ag) ditches carrying more than ephemeral flow have for many years been regulated as WOTUS if they connect downstream with a tributary system, as most do. See, e.g., Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001); United States v. Vierstra, 803 F. Supp. 2d 1166 (D. Idaho 2011); 62 Fed. Reg. 20,177, 20,180 (1997) (EPA Region 10, Idaho CAFO General Permit, Response to Comments: “Canals and laterals which empty into (or connect with) waters of the United States such as rivers, streams, lakes, etc. are themselves waters of the United States in accordance with the definition of waters of the United States in 40 CFR 122.2(e).”).
The ditch exemptions in the 2015 rule and the proposed replacement rule vary considerably in scope. The ag lobby has fought hard against designating ditches as WOTUS, not wanting to be encumbered with the need for 404 permits for filling adjacent wetlands or the need to comply with water quality standards for irrigation ditches and ag drains. EPA bowed to that pressure and the 2015 rule exempted ditches with intermittent flow that are dug in uplands. 40 C.F.R. § 230.3(o)(2)(iii)(B). That includes many, if not most of the irrigation ditches in the arid west because most of those ditches were dug through otherwise dry ground, and they flow typically from April to October each year. The proposed Trump administration replacement rule, which is not yet in effect, would go further and exempt almost all ditches except those that were formerly tributaries to a WOTUS. 84 Fed. Reg. at 4210–4211.
Here comes the drafting problem. By exempting ag ditches from the WOTUS definition, those exempt ditches are now arguably point sources. Under section 502(14) of the CWA, “[t]he term ‘point source’ means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, . . . This term does not include agricultural stormwater discharges and return flows from irrigated agriculture” (emphasis added). The point where the ditch enters a jurisdictional river or lake typically is a discernable, confined, and discrete conveyance.
The ag point source exemption may not help here. Ag stormwater and return ag flow from irrigated agriculture are exempt as point sources. That is, the water running off of farm fields is exempt from regulation under the CWA. But the water in the ditches collecting that runoff is another question. If the ditch is 100 percent irrigation return flow, one can argue it is exempt under CWA § 402(l)(1), which exempts from NPDES permitting ditches and drains that are “composed entirely of flows from irrigated agriculture. . .”. First, this exemption applies only to irrigated agriculture. Second, most ditches carry some non-ag stormwater runoff or other point source pollutants. Comingled flows fall outside of the 402(l) exemption, making them subject to regulation.
Most ag drains and tail water from irrigation ditches (i.e., water that flows off the end of fields following irrigation) flow back into regulated surface water bodies. It is very common for irrigation ditches to divert water from, say, the Snake River, run it through farm fields for miles where it supplies irrigation water to fields and receives runoff from the farms and often everything else in the area. The ditch then reenters the river some miles downstream. The city of Jerome, Idaho, sewage treatment plant, for example, discharges to the J Canal, which is a man-made ditch that flows only during irrigation season, qualifying it for the 40 C.F.R. § 230.3(o)(2)(iii)(B) exemption. Jerome’s plant has an NPDES-permitted outfall to the J Canal. If the J Canal is no longer WOTUS, does the city of Jerome still need an NPDES permit? Is the J Canal now subject to NPDES permitting requirements where it flows back into the Snake River because it is commingled with sewage treatment plant effluent?
Points where irrigation ditches reenter rivers have not been considered point sources historically because they represent a point where one WOTUS is flowing into another. Regulation occurs where the point source enters WOTUS, not where one WOTUS flows into another. If you own an irrigation ditch or ag drain, you do not want to be a point source subject to NPDES permitting requirements. Many ag ditches are owned by irrigation companies, drainage districts, and the Bureau of Reclamation, to name a few. If those ditches are no longer WOTUS and therefore become point sources, then the owners of those ditches would have to get NPDES permits for their tail water.
The water transfer rule (WTR), may help as long as there is no intervening use. See 40 C.F.R. § 122.3(i) (“water transfer” is defined as “an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. This exclusion does not apply to pollutants introduced by the water transfer activity itself to the water being transferred.”). But if the ditch received stormwater or NPDES-permitted effluent and is not merely moving water from point A to point B, then arguably the WTR does not apply.
These issues came up in Glaser. In that case, the Ninth Circuit held that § 402(l) exempts discharges from all activities that are related to crop production, construing broadly the term “irrigated agriculture,” but limited that holding by concluding the burden under § 402(l) falls on defendants to show they are exempt from NPDES permitting requirements and the district erred in concluding that “entirely” as used in that section means “majority” when construing the phrase “composed entirely of return flow from irrigated agriculture.” It is this last holding that will make it hard for many, if not most ditches to meet the requirements of the exemption.
In Nakia’ikai, the court held that a 100-year-old, man-made drainage ditch designed to drain wetlands via a pump system into the ocean is a point source. The facts of the case are a bit complex, and I will not lay them all out here, but the case essentially turned on whether a man-made drainage ditch that pumped contaminated water (mixed ag drain and non-ag stormwater) into the ocean was a point source or whether it was a water transfer similar to the pump system used in Miccosukee Tribe of Indians of Florida v. S. Florida Water Mgmt. Dist., 541 U.S. 95 (2004). The ditch is not WOTUS, the court held, because it was designed and built to be a conveyance system to remove polluted water from former orchards. The court further held that the WTR does not apply because the system adds pollutants (an intervening use). The court concluded that the ditch was a point source because the entire drain system added pollutants, rejecting the argument that the pumps alone must add pollutants to fall outside of the WTR. This is one of only a few cases interpreting the WTR, so it will be carefully scrutinized, especially by the ag sector.
Having a WOTUS run through your property is not without consequences, and regulatory burdens of meeting water quality standards or dealing with adjacent wetlands can be problematic. But being a point source is much more difficult to deal with, I maintain. Ever since the 2015 rule was promulgated with the ag ditch exemptions, I have argued that it is only a matter of time before an environmental group finds a great fact scenario to bring a case against a ditch owner. That has now happened. Katie bar the door.