On Friday, March 9, the U.S. Court of Appeals for the Ninth Circuit issued another significant ruling in a Clean Water Act (CWA) Citizen Suit case. Affirming the District Court, the Ninth Circuit held

“pipes, ditches, and channels that discharge pollutants from non-concentrated aquatic animal production facilities are point sources within the meaning of 33 U.S.C. § 1362(14).”

Olympic Forest Coalition’s (OFC) complaint alleged that discharges of pollutants from Coast Seafoods Corporation’s (CSC) large oyster hatchery though “pipes, diches and channels” requires an National Pollutant Discharge Elimination System (NPDES) permit. In its defense, CSC argued that its facility was exempt “on the ground that its hatchery is an aquatic animal production facility that can be regulated as a point source under the CWA only if it is a ‘concentrated aquatic animal production facility.’” CSC argued that the Director of the Washington Department of Ecology determined that its hatchery is not a concentrated aquatic animal production facility and therefore did not require an NPDES permit because it was not a point source.

Section 1362(14) of the CWA defines a “point source” to include “concentrated animal feeding operations” (CAFOs) , and this provision is fleshed out by the Environmental Protection Agency’s rules at 40 C.F.R. § 122.34, which also applies the NPDES rules to “concentrated aquatic animal production facilities” as determined in accordance with Appendix C to Part 122. The Rules and Appendix C provide for a case-by-case designation as a cold water aquatic animal production facility as a regulated concentrated animal production facility.

The Ninth Circuit was not persuaded by CSC’s argument, confirming that such exceptions or exemptions from the CWA must be expressly set forth in the text of the statute, and there is no express exemption for pipes, ditches and channels that discharge pollutants from aquatic animal production facilities that are not concentrated aquatic animal production facilities. While the Ninth Circuit agreed with CWA that the text of the CWA is unclear with respect to CAFOs, it is “wrong in contending that the lack of clarity is relevant to the question before us.”

EPA’s Rules only “tell us only what CAFO is. [They] do not purport to tell us whether pipes, ditches, and channels that discharge effluents from non-concentrated animal production facilities are point sources.”

For the Ninth Circuit , it makes practical sense that a CAFO is itself a point source; if they are not point sources, such a facility would be free to pollute at will exempt from any regulation under the CWA and the NPDES permit system. The Ninth Circuit further confirmed that the state permitting agency agreeing with CSC that no NPDES permit is required is of no moment, and in any case the it held that there is no evidence that the agency conducted its own independent assessment of the discharge.

The Ninth Circuit noted that EPA’s Rules are subject to Chevron deference, but EPA did not file any submissions or participate in this case.

Additional Source: Second Circuit: FERC’s And State Agency’s Interpretations Of CWA Are Not Entitled To Chevron Deference