OLYMPIC FOREST COALITION, a Washington corporation, Plaintiff-Appellee, v. COAST SEAFOODS COMPANY, a Washington corporation, Defendant-Appellant.
No. 16-35957
United States Court of Appeals, Ninth Circuit
March 9, 2018
D.C. No. 3:16-cv-05068-RBL
Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding
Argued and Submitted November 8, 2017 Portland, Oregon
Filed March 9, 2018
Before: Ferdinand F. Fernandez, William A. Fletcher, and Michael J. Melloy,* Circuit Judges.
Opinion by Judge W. Fletcher
Environmental Law
The panel affirmed the district court‘s denial of a motion to dismiss a Clean Water Act suit alleging that discharges from the defendant‘s oyster hatchery required a National Pollution Discharge Elimination System permit.
The panel held that pipes, ditches, and channels that discharge pollutants from non-concentrated aquatic animal production facilities are “point sources” requiring an NPDES permit.
COUNSEL
Bruce L. Campbell (argued), Miller Nash Graham & Dunn LLP, Portland, Oregon, for Defendant-Appellant.
Paul A. Kampmeier (argued), Kampmeier & Knutsen, PLLC, Seattle, Washington; Brian A. Knutsen, Kampmeier & Knutsen, PLLC, Portland, Oregon; for Plaintiff-Appellee.
Samuel W. Plauche and Amanda M. Carr, Plauche & Carr LLP, Seattle, Washington, for Amici Curiae Pacific Coast Shellfish Growers Association and East Coast Shellfish Growers Association.
OPINION
W. FLETCHER, Circuit Judge:
Olympic Forest Coalition (“Olympic Forest“) brought suit against Coast Seafoods Company (“Coast“) under the Clean Water Act (“CWA” or “Act“), contending that discharges from Coast‘s oyster hatchery through “pipes, ditches, and channels” require a National Pollution Discharge Elimination System (“NPDES“) permit. Coast moved to dismiss under
The district court denied Coast‘s motion to dismiss, holding that pipes, ditches, and channels that discharge pollutants from its hatchery are point sources within the meaning of
We affirm.
We recount the facts as alleged in the complaint and as supplemented by a letter from the Washington State Department of Ecology of which we have taken judicial notice. The complaint alleges that Coast owns and operates a cold-water oyster hatchery adjacent to Quilcene Bay, near the north end of Hood Canal in Washington State. Coast‘s hatchery is the world‘s largest shellfish hatchery, capable of producing over 45 billion eyed oyster larvae per year. As part of its operation, the hatchery discharges pollutants into Quilcene Bay through pipes, ditches, and channels, including the following: “suspended solids, nitrogen, phosphorous, ammonia, nitrites, nitrates, Chlorophyll a, Phaeoshytin a, heat, pH, salinity, dissolved oxygen, and chlorine.”
The complaint further alleges that Coast hired a consulting firm, Rensel Associates Aquatic Sciences (“Rensel Associates“), to assess the effluent discharged from the hatchery. After sampling the effluent, Rensel Associates produced a report on February 7, 2013, that documented the presence of certain pollutants in the effluent. However, Rensel Associates did not sample all sources of effluent from the hatchery and did not test for the presence of chlorine. The complaint alleges that water quality samples taken from Quilcene Bay on June 25, June 29, July 2, July 9, July 11, July 16, and July 17, 2014, indicated discharges of chlorine from Coast‘s hatchery.
On January 27, 2016, Olympic Forest filed a citizen suit under § 505 of the CWA, alleging that discharges from the hatchery through pipes, ditches, and channels violate
On July 19, 2016, six months after Olympic Forest filed its complaint, Coast wrote a letter to the Washington Department of Ecology (“Ecology“), referencing the 2013 Rensel Report and asking “whether the Department of Ecology‘s (Ecology) view, communicated in 2013, that Coast‘s Quilcene shellfish hatchery does not require a National Pollution Discharge Elimination System (NPDES) permit, is still applicable.” On July 29, 2016, ten days later, Ecology responded that an NPDES permit was not required. Ecology gave two reasons for its conclusion. First, the hatchery did not meet the criteria for automatic designation as a CAAPF under
Coast moved under
The district court denied Coast‘s motion to dismiss. We affirm.
II. Standard of Review
We review de novo a district court‘s denial of a motion to dismiss under
We also review de novo the district court‘s interpretation of the CWA and its implementing regulations. League of Wilderness Defs./Blue Mts. Biodiversity Project v. Forsgren, 309 F.3d 1181, 1183 (9th Cir. 2002). We review the EPA‘s interpretation of the CWA under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).
III. Discussion
In 1948, Congress enacted the Federal Water Pollution Control Act (“FWPCA“), which encouraged states to pass uniform laws to address water contamination. Federal Water Pollution Control Act of 1948, Pub. L. No. 80-845, 62 Stat. 1155. In 1972, in response to the increased degradation of the nation‘s waters, Congress amended the FWPCA, replacing the state-run water maintenance system with increased federal obligations, including strict timetables, permit requirements, and technology-based effluent
A. Text of the CWA
“It is well settled that the starting point for interpreting a statute is the language of the statute itself.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 56 (1987) (internal quotation marks and citation omitted). When interpreting a statute, we first use the “traditional tools of statutory construction,” to determine whether Congress directly addressed the “precise question at issue.” Chevron, 467 U.S. at 843 n.9. If the precise question at issue is addressed, then the “unambiguously expressed intent of Congress” controls. Id. at 843. A “clear and unambiguous” statutory provision is one in which the meaning is not
The CWA defines “point source” as follows:
The term “point source” means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.
It is undisputed that discharges from point sources must obtain NPDES permits. It is also undisputed that under
The key to interpreting
The Supreme Court has interpreted the term “any” as being broad and all-encompassing. See United States v. Williams, 514 U.S. 527, 531–32 (1995) (broadly construing the word “any” in tax refund statute) (emphasis added). We have similarly interpreted “any.” See Lockett v. Ericson, 656 F.3d 892, 898 (9th Cir. 2011) (finding that an “any issue determined therein” clause is all-inclusive); Barker v. Riverside Cty. Office of Educ., 584 F.3d 821, 825–26 (9th Cir. 2009) (holding that “any person aggrieved” and “any individual” are all-inclusive phrases); Ivers v. United States, 581 F.2d 1362, 1373 (9th Cir. 1978) (interpreting the term “any” broadly under forfeiture law).
The meaning of a statutory provision is also determined by placing the language in context — both the specific context in which it is used and the broader context of the overall statute. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477 (1992); McCarthy v. Bronson, 500 U.S. 136, 139 (1991). Where exceptions or exemptions are meant in the CWA, they are expressly provided. For example, the Act carves out exemptions for what constitutes a “pollutant,”
We therefore conclude, as a matter of the plain meaning of the text of the CWA, that “pipes, ditches, channels,” and “concentrated animal feeding operations” that discharge pollutants into navigable waters are all “point sources” subject to the NPDES permit requirement. See Brown, 640 F.3d at 1071 (relying on the “clarity of the text” of the CWA to hold that a “system of ditches, culverts, and channels” collecting storm water runoff was a point source); Forsgren, 309 F.3d at 1185–86 (relying on the “clear and unambiguous” text of CWA to hold that an aircraft spraying insecticide was point source). We further conclude, as a necessary corollary, that pipes, ditches, and channels that discharge pollutants from an aquatic animal production facility that is not a CAAPF are point sources for which an NPDES permit is required.
B. EPA Definitions of CAFOs
Coast contends that the text of the CWA is unclear, and that we should defer under Chevron to the interpretation of the CWA by the Environmental Protection Agency (“EPA“). The EPA is not a party to this litigation and has taken no position in this litigation on the question before us.
Coast points to EPA regulations defining CAFOs, contending that the regulations provide clarity that is lacking in the text of the statute. According to Coast, the regulations require us to hold that an aquatic animal production facility, and any pipes, ditches, and channels discharging pollutants
As indicated above, a “concentrated animal feeding operation,” or CAFO, is listed in
The first subcategory is a CAFO for land-based animals. This subcategory, called a CAFO in EPA regulations, is defined in
The second subcategory is a CAFO for aquatic animals. This subcategory, called a CAAPF in EPA regulations, is defined in
We agree with Coast that the EPA‘s CAFO regulations resolve a lack of clarity in the CWA. Section 1362(14) provides that a “concentrated animal feeding operation” is a point source, but the words “concentrated” and “operation” are not self-defining. The regulations just described provide a precision that is lacking in the statutory language. However, the lack of clarity in the statutory term “concentrated animal feeding operation” is irrelevant here, for the meaning of that term is not the question before us.
The question is whether “pipes, ditches, [and] channels” and “concentrated animal feeding operations” are all point sources. Sections 122.23 and 122.24 of the EPA regulations tell us only what a CAFO is. These regulations do not
C. Practical Sense of the Permitting Scheme
It makes practical sense that a CAFO is itself a point source. A CAFO can discharge pollutants through pipes, ditches, channels, or similar conduits; but it often discharges pollutants directly, without using any such conduit. For example, a CAFO for land-based animals such as a cattle feeding lot can discharge pollutants from a manure storage “lagoon” into navigable waters through direct seepage into the earth or through overflows from the lagoon. See, e.g., Waterkeeper All., Inc. v. E.P.A., 399 F.3d 486, 494 (2d Cir. 2005) (“[P]ollutants can infiltrate the surface waters in a variety of ways including ... overflows from storage ‘lagoons[.]‘“). A CAFO for aquatic animals, such as a salmon farm, often discharges pollutants directly into navigable waters. Since a CAFO requires an NPDES permit, the permit covers all discharges from the CAFO however the discharges are made, including through pipes, ditches, and channels. See, e.g., Cmty. Ass‘n for Restoration of the Env‘t v. Henry Bosma Dairy, 305 F.3d 943, 955 (9th Cir. 2002) (“[F]ields where manure is stored and ditches therein are part of the CAFO and thus, point sources“).
It also makes practical sense that pipes, ditches, and channels that discharge pollutants from a non-concentrated aquatic animal production facility are point sources. If the facility is not a CAAPF, it cannot be required to obtain an NPDES permit as a CAAPF. But the fact that an aquatic animal production facility is not a CAAPF does not mean that the facility does not discharge pollutants through pipes,
Coast disagrees, arguing that a non-concentrated aquatic animal production facility is necessarily not a significant contributor of pollution. That is, if the facility does not satisfy the criteria of
As described above, on July 19, 2016, after Olympic Forest filed its complaint in this case, Coast wrote a letter to Washington‘s Department of Ecology (“Ecology“), asking whether its oyster hatchery was required to obtain an NPDES permit. Three years earlier, based on the Rensel Report, Ecology had concluded that Coast‘s hatchery did not need an NPDES permit. On July 29, Ecology responded to Coast‘s letter, stating that a permit was not required and giving two reasons. First, Coast‘s hatchery did not satisfy the criteria of Appendix C for a CAAPF. Second, based on the Rensel Report, the hatchery did not otherwise qualify as a CAAPF. Ecology wrote, referring to its earlier decision, “[an] Ecology surface water monitoring specialist had reviewed the report
Ecology thus determined that Coast‘s hatchery did not meet the criteria of a CAAPF specified in
In concluding in 2013 and again in 2016 that Coast‘s hatchery is not a CAAPF under
D. APHETI
Finally, citing Ass‘n to Protect Hammersley, Eld, & Totten Inlets v. Taylor Resources, Inc. (“APHETI“), 299 F.3d 1007 (9th Cir. 2002), Coast contends that we have already decided the question presented in this case. Plaintiff in APHETI contended that defendant Taylor Resources was
Plaintiff contended that Taylor‘s rafts were point sources under
In the passage upon which Coast relies, we then wrote:
[Plaintiff] APHETI argues that, even if Taylor‘s mussel harvesting facilities do not meet the EPA‘s definition of a CAAPF, they still fall under the general definition, “discernible, confined, and discrete conveyance,” or under the more specific definition, “vessel or other floating craft.” By this reasoning, APHETI argues that Taylor‘s mussel rafts are “point source[s]” and that their operation, if discharging pollutants, requires an NPDES permit. But, whatever
merit this argument might have in the absence of a regulatory definition of when an aquatic animal feeding operation is a point source, the argument has little persuasive effect when faced with aquatic animal farming that does not involve feeding and that is not within the express and described limits that invoke the Act under the regulation. ... In the context of aquatic animal harvesting, the EPA‘s regulations expressly exclude from the definition of “point source” facilities, like Taylor‘s that do not meet certain feeding thresholds. To hold that these facilities are nonetheless “point sources” under the statutory definition would render the EPA‘S CAAPF criteria superfluous and undermine the agency‘s interpretation of the Clean Water Act.
Id. at 1018-19 (emphases added).
Plaintiff in APHETI never argued that “pipes, ditches, and channels” were point sources if they discharged pollutants from aquatic animal production facilities. Rather, it argued that the catch-all phrase “discernible, confined and discrete conveyance,” and the more specific phrase “vessel or other floating craft,” provided additional definitions of point sources under which the rafts could be regulated. Plaintiff argued that if the rafts were not a point source as a “concentrated aquatic animal production facility,” they could be a point source as another kind of “facility,” such as a “vessel or other floating craft.” Id.
Because there were no conduits such as pipes, ditches, or channels associated with Taylor‘s mussel rafts, plaintiff in APHETI made no argument with respect to such point sources. In the passage from APHETI upon which Coast relies, we were responding to a different argument, one that addressed two kinds of “facilities.” We therefore conclude, contrary to Coast‘s contention, that we did not in APHETI decide the question before us today.
Conclusion
We affirm the district court. We hold that pipes, ditches, and channels that discharge pollutants from non-concentrated
AFFIRMED.