The Ninth Circuit reversed the district court, holding that the Talent Irrigation District (TID) discharged a pollutant into navigable waters from a point source, in violation of the Clean Water Act (CWA).[1] The court also held that a label approved under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),[2] does not eliminate the need for a National Pollution Discharge Elimination System (NPDES) permit when the herbicide is applied to navigable waters. Therefore, TID's application of Magnacide H without a permit violated the CWA.

TID operates an irrigation canal system in Jackson County, Oregon, and uses an aquatic herbicide, Magnacide H, to control the growth of aquatic weeds and vegetation in the irrigation canals. Magnacide H contains acrolein, an acutely toxic chemical that kills fish and wildlife. TID applied the herbicide to its canals from late spring to early fall. In May 1996, application of the herbicide resulted in the death of 92,000 juvenile steelhead when a leaking waste gate released water into nearby Bear Creek. In January 1998, Headwaters, a nonprofit environmental group, brought a citizen suit under the CWA, charging TID with discharging chemicals without a NPDES permit.[3] Headwaters sought a declaratory judgment, an injunction prohibiting TID from discharging without a permit, and an injunction allowing Headwaters to monitor future discharges. In addition, Headwaters' complaint requested civil penalties, plaintiffs' costs and attorney's fees, and damages for environmental restoration.

The Ninth Circuit first rejected TID's claim that the court did not have subject matter jurisdiction because Headwaters' allegations were based entirely on "wholly past" violations of the CWA. The court determined that TID continues to discharge the herbicide into the irrigation canals without a permit. As a result, Headwaters' claim was based on a continuing violation. TID argued that it "implemented a new protocol" that had prevented any leaks since the Bear Creek fish kill.[4] However, the court concluded that the violations were continuous because the alleged violation occurred when TID applied the herbicide into the irrigation canals, rather than Bear Creek.

The Ninth Circuit next addressed TID's claim that the irrigation district does not need an NPDES permit because the Environmental Protection Agency (EPA) approved the label for Magnacide H under FIFRA. TID contended that it did not need an NPDES permit because the label did not mention a permit requirement. FIFRA regulates the sale, use, and labeling of pesticides. The Act creates a regulatory scheme that requires all pesticides to be registered with EPA and labeled under uniform national labels that are approved by EPA after a complex review process. EPA approved Magnacide H's label, which contained warnings that the herbicide is toxic to fish and wildlife and should not be applied to bodies of water. However, the label does not mention the need for an NPDES permit. The district court concluded that the failure to mention a need for an NPDES permit indicated that one was not required.

The Ninth Circuit held that the registration and labeling of Magnacide H under FIFRA does not preclude the need for a permit under the CWA.[5] The court interpreted FIFRA and the CWA in order to give effect to both statutes, while maintaining their "sense and purpose."[6] The court determined that a FIFRA label and an NPDES permit serve different, complementary purposes. FIFRA regulates pesticide use through a nationally uniform labeling system, but does not issue permits for individual applications of herbicides. Therefore, FIFRA does not take into consideration local environmental conditions. The CWA regulates the discharge of all pollutants into the waters of the United States through national effluent standards. In contrast to FIFRA, the CWA takes into account local environmental conditions by establishing a permit system to regulate individual discharges. The Ninth Circuit reasoned that the application of the herbicide into a specific canal may have "effects that depend on local environmental conditions . . . that will not be duplicated in other areas."[7] Therefore, because FIFRA does not provide a method for taking local environmental conditions into account for individual applications of herbicides, the NPDES permit serves the local monitoring function. The court also considered EPA's amicus brief which explained that the agency approves labels without analyzing whether the product could be discharged into a body of water in compliance with the CWA.

After establishing that the CWA permit requirement applied, the Ninth Circuit asked whether TID's application of the herbicide without a permit violated the CWA. The CWA requires an NPDES permit for the discharge of a pollutant into the navigable waters from a point source. TID did not dispute that the herbicide was applied from a point source, and the court quickly dismissed the argument that application of the herbicide did not qualify as a "discharge" because TID applied the herbicide directly into the canals. TID also claimed that Magnacide H was not a "pollutant" because it was applied for a beneficial purpose and the CWA definition of "pollutant" includes "chemical wastes" but not "chemicals."[8] The Ninth Circuit agreed with the district court that "the residual acrolein left in the water after its application qualifies as a chemical waste product" and therefore, qualifies as a "pollutant" under the CWA.[9]

TID next disputed that the irrigation canals were "navigable waters."[10] The court concluded that the canals were "navigable waters" because they exchange water with streams and other natural bodies of water. The court determined that the irrigation canals were tributaries because they are "streams which contributes their flow to a larger stream or other body of water."[11] Tributaries are "waters of the United States" and are subject to the requirements of the CWA.[12] The Ninth Circuit distinguished this case from the recent Supreme Court decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC).[13] The Court held in SWANCC that "isolated waters," intrastate waters with no connection to any navigable waters, were not subject to the Corps' authority under the CWA.[14] The Ninth Circuit rejected TID's argument that the irrigation canals are "isolated waters" because they have closed waste gates that form a "closed system."[15] The court first pointed out that the waste gates failed to contain the treated water when leaks killed fish in 1996 and 1983. The court also determined that the irrigation canals are intermittent streams because they exchange water with natural streams. Intermittent streams qualify as "waters of the United States."[16] Therefore, TID's application of Magnacide H without a permit violated the CWA because it was a discharge of a pollutant into the navigable waters from a point source.