Olympic Forest Coalition v. Coast Seafoods Company
884 F.3d 901
9th Cir.2018Background
- Olympic Forest Coalition sued Coast Seafoods under the Clean Water Act alleging Coast’s oyster hatchery discharged pollutants (including chlorine, nutrients, solids, and others) into Quilcene Bay through pipes, ditches, and channels without an NPDES permit.
- Coast moved to dismiss under Rule 12(b)(6), arguing its hatchery is an aquatic animal production facility that is subject to NPDES permitting only if it qualifies as a concentrated aquatic animal production facility (CAAPF).
- The Washington Dept. of Ecology twice concluded Coast’s hatchery was not a CAAPF based on a consultant report (Rensel), and thus did not need an NPDES permit; the complaint alleges the report failed to test for chlorine and that chlorine discharges occurred.
- The district court denied dismissal, holding pipes, ditches, and channels that discharge pollutants are point sources under 33 U.S.C. § 1362(14), and certified an interlocutory question for appeal under 28 U.S.C. § 1292(b).
- The Ninth Circuit affirmed, holding that the statute’s text treats "any" pipe, ditch, channel, and concentrated animal feeding operation as point sources and that pipes/ditches/channels discharging from non-CAAPF aquatic facilities are themselves point sources requiring NPDES permits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pipes, ditches, and channels that discharge pollutants from a non-CAAPF aquatic animal production facility are "point sources" under § 1362(14) | Such conduits are point sources and require NPDES permits | Conduits tied to non-concentrated aquatic facilities are not subject to NPDES; only CAAPFs can be regulated as point sources | Affirmed: "pipes, ditches, and channels" discharging pollutants are point sources regardless of whether the facility is a CAAPF |
| Whether CAAPF regulatory definitions displace the statutory text | N/A (plaintiff relies on statutory language) | EPA CAAPF regulations show only CAAPFs are treated as point sources and thus non-CAAPF conduits should be exempt | The court held the CAAPF regulations clarify what a CAAPF is but do not override the plain statutory inclusion of conduits as point sources |
| Whether prior Ninth Circuit decision APHETI foreclosed this theory | N/A | Coast: APHETI held aquatic operations not meeting CAAPF criteria are not point sources | Court distinguished APHETI as addressing different facts (no conduits) and reaffirmed conduits here can be point sources |
| Whether EPA deference (Chevron) requires a different result | N/A | Coast asked for Chevron deference to EPA regs | Court found statute clear as to conduits; EPA regs irrelevant to whether conduits are point sources and Chevron did not alter outcome |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (statutory interpretation principles for CWA claims)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (agency deference framework)
- Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir.) (reliance on clear CWA text to identify point sources)
- League of Wilderness Defs./Blue Mts. Biodiversity Project v. Forsgren, 309 F.3d 1181 (9th Cir.) (CWA text applied to find point-source liability)
- Ass’n to Protect Hammersley, Eld, & Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007 (9th Cir.) (distinguished; addressed aquatic operations without conduits)
- Cmty. Ass’n for Restoration of the Env’t v. Henry Bosma Dairy, 305 F.3d 943 (9th Cir.) (permitting scope for CAFO discharges)