Environmental Law & Policy Alerts – Update from Somach, Simmons & Dunn

September 10, 2019

Ninth Circuit Places Burden on Dischargers to Prove Clean Water Act Agricultural Return Flow Exception Applies

The Ninth Circuit recently held that dischargers bear the burden of showing a court that their discharges meet a statutory exception to the permitting requirement in the Clean Water Act (CWA).  In Pacific Coast Federation of Fishermen’s Associations v. Glaser, No. 17-17130 (9th Cir. Sept. 6, 2019), the Ninth Circuit held that the defendant dischargers, as opposed to the plaintiffs alleging that an unpermitted discharge was occurring in violation of the CWA, must demonstrate to the court that their discharge fits the exception by being composed entirely of return flows from irrigated agriculture.  In addition, the Ninth Circuit defined the terms “irrigated agriculture” and “entirely.” … Read More Written by Brenda C. Bass