Headwaters v. Talent Irrigation Dist.

• Decision Date: 12 March 2001
• Docket Number: No. 99-35373,99-35373
• Citation: 243 F.3d 526
• Parties: (9th Cir. 2001) HEADWATERS, INC., an Oregon not for profit corporation; OREGON NATURAL RESOURCES COUNCIL (ONRC) ACTION, an Oregon not for profit corporation, Plaintiffs-Appellants, v. TALENT IRRIGATION DISTRICT, an Oregon municipal corporation, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 526

243 F.3d 526 (9th Cir. 2001)

HEADWATERS, INC., an Oregon not for profit corporation; OREGON NATURAL RESOURCES COUNCIL (ONRC) ACTION, an Oregon not for profit corporation, Plaintiffs-Appellants, v. TALENT IRRIGATION DISTRICT, an Oregon municipal corporation, Defendant-Appellee.

No. 99-35373

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 8, 2000

Filed Filed March 12, 2001

[Copyrighted Material Omitted]

Charles M. Tebbutt, Western Environmental Law Center, Eugene, Oregon, for the plaintiffs-appellants.

Robert L. Cowling, Hornecker, Cowling, Hassen & Heysell, Medford, Oregon, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding. D.C. No.CV-98-06004-ALA

Before: Robert Boochever, Stephen S. Trott, and Marsha S. Berzon, Circuit Judges.

BOOCHEVER, Circuit Judge:

Headwaters, Inc. and Oregon National Resources Council Action filed a citizen lawsuit against the Talent Irrigation District. The suit alleged that the irrigation district had violated the Clean Water Act by applying the aquatic herbicide Magnacide H to its canals, without obtaining a National Pollution Discharge Elimination System permit. The district court granted summary judgment in favor of the irrigation district. The court held that the canals were waters of the United States covered by the Clean Water Act, and that the active ingredient in Magnacide H was a pollutant. Nevertheless, the court concluded that no permit was required because the label on the herbicide, approved by the Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act, did not require the user to acquire a permit. Because we conclude that the approved label did not obviate the need to obtain a permit, we reverse.

FACTS

The Talent Irrigation District ("TID") operates a system of irrigation canals in Jackson County, Oregon. The canals derive water from a variety of surface streams and other bodies of water, including Bear Creek, Emigrant Lake, Wagner Creek, and Anderson Creek. The canals also divert water to such streams as Bear Creek, Wagner Creek, Anderson Creek, Coleman Creek, Dark Hollow Creek, and Butler Creek. [ER pp. 53-56]

TID provides irrigation waters to its members from May to September or October. To control the growth of aquatic weeds and vegetation in its irrigation canals, TID uses an aquatic herbicide, Magnacide H, which it applies to the canals with a hose from a tank on top of a truck every two weeks from late spring to early fall. The active ingredient in Magnacide H is acrolein, an acutely toxic chemical that kills fish and other wildlife. TID does not have, and has never applied for, a National Pollution Discharge Elimination System permit ("NPDES permit" or "permit") issued under the Clean Water Act, 33 U.S.C. S 1342.

In May 1996, TID applied Magnacide H to the Talent Canal, and the next day the Oregon Department of Fish and Wildlife found many dead fish in nearby Bear Creek, around and downstream from a leaking waste gate from the canal. Over 92,000 juvenile steel head were killed. An earlier fish kill in Bear Creek followed an application of Magnacide in 1983. [ER pp. 34-35]

On January 5, 1998, Headwaters, Inc. and Oregon Natural Resources Council Action (hereafter referred to as "Headwaters" or "plaintiffs"), nonprofit environmental corporations whose members use the streams near TID's canals, brought a citizen suit under the Clean Water Act ("CWA"), 33 U.S.C. S 1365. The complaint alleged that TID is in violation of the CWA, 33 U.S.C. S 1311, when it discharges the toxic chemical into the irrigation canals, and through the canals into Bear Creek, without a permit under 33 U.S.C. S 1342. [ER pp. 810] The complaint asked for a declaratory judgment, an injunction prohibiting TID from discharging pollutants without a permit, and an injunction requiring TID to allow the plaintiffs to monitor further discharges. The complaint also asked for an injunction requiring TID to pay for environmental restoration, as well as civil penalties and the plaintiffs' costs and attorneys fees.

Headwaters filed a motion for partial summary judgment on liability, and TID filed a cross-motion. The district court granted TID's cross-motion. The court held that Headwaters had standing to bring a citizen's suit under the CWA; that the irrigation canals were "waters of the United States" subject to the Act; and that Magnacide H (with its active chemical ingredient acrolein) is a "pollutant" under 33 U.S.C. S 1362. But the court also concluded that no NPDES permit was necessary: "[T]he application of acrolein is adequately regulated and controlled by [the Federal Insecticide Fungicide and Rodenticide Act] and the EPA thus making further regulation by the [CWA] unnecessary." [ER p. 130 ] Because the EPAapproved label on Magnacide H did not require a permit, the court held that none was required. The court further concluded that the application by TID of Magnacide H complied with the FIFRA label and that acrolein had not "recently" leaked from the irrigation canals into "natural waterways." [ER p. 135] The court denied relief to the plaintiffs, but recommended they petition the EPA to amend the label to require a permit. This appeal followed.

ANALYSIS

We review the district court's grant of summary judgment de novo. See Botosan v. Paul McNally Realty, 216 F.3d 827, 830 (9th Cir. 2000).

I. Subject matter jurisdiction

TID argues on appeal that the district court had no jurisdiction because the suit was based on wholly past violations of the CWA. "The Clean Water Act does not permit citizen suits for wholly past violations." Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1143 (9th Cir. 1998) (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64 (1987)). Nevertheless, a citizen group has "standing to seek penalties for violations that are ongoing at the time of the complaint and that could continue into the future if undeterred." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 120 S. Ct. 693, 708 (2000); see Russian River, 142 F.3d at 1143 ("appellants must prove the existence of ongoing violations or the reasonable likelihood of continuing future violations").

The complaint alleges that TID's application of Magnacide H to its irrigation canals, without a permit, violates the CWA. There is no factual dispute that TID continues to apply Magnacide H to its canals without a permit. The plaintiffs' claim is thus based on a continuing violation.

The complaint also alleges that Magnacide H reaches Bear Creek. TID claims that it has implemented a new protocol, and that since the complaint was filed there have been no leaks into Bear Creek and "no releases are likely to occur." But the claimed violation of the Clean Water Act is the continuing discharge of the herbicide into the canals without a permit, regardless of whether the herbicide continues to cause environmental damage to any of the numerous streams with which the canals exchange water.

We conclude that we have subject matter jurisdiction.

II. EPA-approved label under FIFRA

The Clean Water Act, as originated in the Federal Water Pollution Control Act Amendments of 1972, generally prohibits the discharge of pollutants into "navigable waters" or "waters of the United States." See 33 U.S.C. SS 1311(a), 1362(7). There are statutory exceptions, however, the broadest of which is the National Pollution Discharge Elimination System ("NPDES") permit program, which allows a polluter who obtains a permit to discharge a specified amount of the pollutant. See id. at S 1342; Russian River, 142 F.3d at 1138. Under the NPDES program, 33 U.S.C. S 1342, the EPA may establish a uniform national limitation on the discharge of an identified pollutant from categories of sources, but the EPA may also issue permits on a case-by-case basis, taking into account local environmental conditions. See American Mining Cong. v. United States Envtl. Prot. Agency, 965 F.2d 759, 762 n.3 (9th Cir. 1992); United States v. Pozsgai , 999 F.2d 719, 725 (3d Cir. 1993) ("The permit system translates [national effluent] standards into site-specific limitations to accommodate individual circumstances and ease enforcement."). TID does not have, and has never applied for, such a permit.

TID claims that it does not need a permit, because Magnacide H's label does not mention any permit requirement, and the label was approved by the EPA under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA").

FIFRA, codified at 7 U.S.C. SS 136-136(y), "is a comprehensive federal statute which regulates pesticide use, sales, and labeling, and grants enforcement authority to the EPA." Taylor AG Indus. v. Pure-Gro, 54 F.3d 555, 559 (9th Cir. 1995); see also Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 601 (1991). The statute creates a comprehensive regulatory scheme for the labeling of pesticides and herbicides, requiring that all herbicides sold in the United States be registered with the EPA. See Andrus v. Agrevo USA Co., 178 F.3d 395, 398 (5th Cir. 1999). After a complex review process, the EPA may approve a label under which the product is to be marketed. See 7 U.S.C. S 136a.

The EPA then registers the herbicide if it determines that its composition is such as to warrant the proposed claims for it, that its labeling complies with FIFRA requirements, that it will perform its intended function without unreasonable adverse effects on the environment, and, when used in accordance with widespread practice, that it will not generally cause unreasonable adverse effects on the environment.

Andrus, 178 F.3d at 398 (citing 7 U.S.C.S 136a(c)(5)). The labels must be nationally uniform. See 7 U.S.C. S 136(v).

Magnacide H is registered under FIFRA and bears an EPAapproved label. [ER p. 40] The label states that the herbicideis toxic...