Oregon Water Resources Congress

MEMORANDUM

March 3, 1999

TO: OREGON WATER RESOURCES CONGRESS

FROM: DAVID E. FILIPPI

RE: Headwaters. Inc. v. Talent Irrigation District, Civil No. 98-6004-4A

Headwaters, Inc. and the Oregon Natural Resources Council Action brought an action against Talent Irrigation District ("TID"), alleging that TID has been illegally discharging pollutants into waters of the United States by applying aquatic herbicides to its water delivery system without first obtaining an NPDES permit under the federal Clean Water Act. Following limited discovery and a round of summary judgment motions, United States District Judge Ann Aiken ruled in favor of TID and dismissed the case. The opinion and order was entered on February 1, 1999.

The court analyzed the issues in the case by focusing on a series of inquiries. The court held that in order for the plaintiffs to establish that TID violated the Clean Water Act, the plaintiffs needed to prove that TID (1) is a "person," (2) who "discharged" or "added," (3) a "pollutant," (4) from a "point source," (5) into "waters of the United States," and (6) the discharge was not authorized by law. The parties did not dispute elements one, two, or four, but strongly disputed elements three, five, and six.

On the third element. Judge Aiken held that Magnacide H. the aquatic herbicide used by TID. is a "pollutant" under the Act. She classified the product as a waste, even though it is discharged into water for a beneficial purpose. According to the opinion, "[t]he herbicide, while beneficial in killing weeds and other vegetation in the canals, is shown to be toxic to fish species and other aquatic life at the recommended application levels."

On the fifth element. Judge Aiken held that the irrigation canals themselves as well a the natural surface waters that intersect and exchange with TID's canals are waters of the United States. According to the opinion, "[t]he canals at issue are tributaries to waters of the United States and are therefore 'waters of the United States' under the Act. Congress intended the Act to control discharges into any waters which might reasonably end up in waters related to interstate commerce. " In particular, Judge Aiken held that canals included "waters of the United States" because they are susceptible to use in interstate commerce, included intrastate waters, amounted to impoundments of waters, and amounted to tributaries of waters.

On the sixth element, Judge Aiken held that Magnacide H is adequately regulated and controlled by FIFRA and the EPA. thereby making further regulation under the Clean Water Act unnecessary, According to the opinion, the RFRA label will determine whether an NPDES permit is needed before application. In essence, so long as an applicator is using an aquatic herbicide in accordance with its FIFRA label, and the label itself does not expressly call for an NPDES permit, no NPDES permit is needed.

The opinion concluded by encouraging plaintiffs to seek relief under FIFRA to petition the EPA to amend the Magnacide H label to include a requirement that an applicator hold an NPDES permit.

II. Where Will the Case Go From Here?

On February 11, 1999, the plaintiffs filed a motion for reconsideration. The motion asks the district court to revisit its opinion and amend the judgment or, in the alternative, to order the matter held over for trial. The plaintiffs argued that regulation of a substance under FIFRA does not preempt simultaneous regulation of the same substance under the Clean Water Act. In addition, the plaintiffs argued that disputed issues of fact necessitate a trial. TID filed a response to the plaintiffs' motion.

If the court grants the motion for reconsideration, the court could either rule in the
plaintiffs favor or order a trial to settle factual issues. If the court denies the motion, the plaintiffs could then appeal the case to the Ninth Circuit Court of Appeals. Such an appeal would entail submitting briefs on the legal issues described above and arguing the case before the Court. All issues raised before the district court can be raised in an appeal to the Ninth Circuit Court of Appeals.

If the Ninth Circuit were to reverse the district court's opinion, the case would likely be remanded to the district court for a trial to settle disputed factual issues. If the Ninth Circuit were to affirm the district court's opinion or rule for TID on other grounds, the plaintiffs would then have the option of appealing to the United States Supreme Court. Such an appeal would again focus on the legal issues raised before the district court.