Olympic Forest Coalition v. Coast Seafoods Company

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLYMPIC FOREST COALITION, No. 16-35957
a Washington corporation,
Plaintiff-Appellee, D.C. No.
3:16-cv-05068-RBL
v.
COAST SEAFOODS COMPANY, OPINION
a Washington corporation,
Defendant-Appellant.
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
*
The Honorable Michael J. Melloy, United States Circuit Judge for
the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
2 OLYMPIC FOREST COALITION V. COAST SEAFOODS
SUMMARY*
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. Plauché and Amanda M. Carr, Plauché & Carr
LLP, Seattle, Washington, for Amici Curiae Pacific Coast
Shellfish Growers Association and East Coast Shellfish
Growers Association.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
OLYMPIC FOREST COALITION V. COAST SEAFOODS 3
Robert W. Ferguson, Attorney General; Ronald L. Lavigne,
Senior Counsel; Olympia, Washington, for Amicus Curiae
State of Washington, Department of Ecology.
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
Federal Rule of Civil Procedure 12(b)(6) 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”
(“CAAPF”).
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 33 U.S.C. § 1362(14). The district court certified
for interlocutory appeal under 28 U.S.C. § 1292(b) the
question whether an NPDES permit is required for discharges
through pipes, ditches, and channels from an aquatic animal
production facility that is not a CAAPF.
We affirm.
4 OLYMPIC FOREST COALITION V. COAST SEAFOODS
I. Background
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 § 301(a)
of the Act because the hatchery has not obtained a NPDES
OLYMPIC FOREST COALITION V. COAST SEAFOODS 5
permit. 33 U.S.C. §§ 1365, 1311(a). Pipes, ditches, and
channels are “point sources” under 33 U.S.C. § 1362(14).
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 40 C.F.R. § 122.24, Appendix C. Second,
“[an] Ecology surface water monitoring specialist had
reviewed the report and concurred with Dr. Rensel’s findings
that discharge from facility was unlikely to alter the Quilcene
Bay water quality.” We have taken judicial notice of
Ecology’s July 29 letter.
Coast moved under Rule 12(b)(6) to dismiss the
complaint, contending that despite the hatchery’s use of
pipes, ditches, and channels to discharge pollutants into
Quilcene Bay, a NPDES permit was not required. Coast
argued to the district court, and argues here, that its hatchery
can be required to obtain an NPDES permit only if it is a
CAAPF. A CAAPF is a subcategory of the statutory category
“concentrated animal feeding operation” (“CAFO”), which is
a point source under § 1362(14). Coast argues that an aquatic
animal production facility — including any pipes, ditches,
and channels associated with the facility — is a point source
only if it is a CAAPF. Thus, it argues, pipes, ditches, and
6 OLYMPIC FOREST COALITION V. COAST SEAFOODS
channels that discharge pollutants from an aquatic animal
production facility cannot themselves be point sources.
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 Rule 12(b)(6). Carlin v. DairyAmerica, Inc.,
705 F.3d 856, 866 (9th Cir. 2013). We accept all plausible
allegations as true and construe them in the light most
favorable to the claim. Knievel v. ESPN, 393 F.3d 1068,
1072 (9th Cir. 2005).
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
OLYMPIC FOREST COALITION V. COAST SEAFOODS 7
limitations. Nat. Res. Def. Council, Inc. v. Costle, 568 F.2d
1369, 1371 (D.C. Cir. 1977); Pub. L. No. 92-500, 86 Stat.
816 (1972). In 1977, Congress amended the FWPCA and
renamed it the Clean Water Act. The purpose of the CWA is
to “restore and maintain the chemical, physical, and
biological integrity of the Nation’s waters.” Nw. Envtl. Def.
Ctr. v. Brown, 640 F.3d 1063, 1070 (9th Cir. 2011), rev’d on
other grounds, Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597(2013) (quoting 33 U.S.C. § 1251(a)). The CWA declared as
a “national goal” the elimination of the discharges of
pollutants into navigable waters by 1985. 33 U.S.C.
§ 1251(a)(1). To attain the goals of the Act, Congress placed
limitations on point source discharges of pollutants through
the NPDES permit system. See 33 U.S.C. § 1342(authorizing only certain point source discharges). Section
301(a) of the Act prohibits “the discharge of any pollutant by
any person” unless in compliance with an NPDES permit.
33 U.S.C. § 1311(a). Section 505 authorizes “any citizen” to
bring a suit alleging a violation of the Act. 33 U.S.C.
§ 1365(a).
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
8 OLYMPIC FOREST COALITION V. COAST SEAFOODS
contradicted by other language in the same act. Barnhart v.
Sigmon Coal Co., Inc., 534 U.S. 438, 460–62 (2002); United
States v. Rosenthal, 266 F. Supp. 2d 1068 (N.D. Cal. 2003),
aff’d in part, rev’d in part on other grounds, 454 F.3d 943(9th Cir. 2006).
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.
33 U.S.C. § 1362(14) (emphases added).
It is undisputed that discharges from point sources must
obtain NPDES permits. It is also undisputed that under
§ 1362(14) “pipe[s], ditch[es], [and] channel[s]” are point
sources, and that a CAAPF, a kind of “concentrated animal
feeding operation,” is also a point source. The disputed
question is whether pipes, ditches, and channels that
discharge pollutants from a non-concentrated aquatic animal
production facility are point sources.
The key to interpreting § 1362(14) is the word “any.”
The CWA requires an NPDES permit for the “discharge of
any pollutant.” 33 U.S.C. § 1311(a) (emphasis added). The
Act defines “discharge of a pollutant” as “any addition of any
pollutant to the waters of the contiguous zone or the ocean
from any point source other than a vessel or other floating
OLYMPIC FOREST COALITION V. COAST SEAFOODS 9
craft.” 33 U.S.C. § 1362(12) (emphasis added). And, as
quoted above, the Act provides that “any . . . conveyance,
including but not limited to any pipe, ditch, channel, . . .
concentrated animal feeding operation,” is a “point source.”
33 U.S.C. § 1362(14).
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,”
33 U.S.C. § 1362(6), what constitute “coastal recreation
waters,” 33 U.S.C. § 1362(21), what constitute “recreational
vessels,” 33 U.S.C. § 1362(25), and what constitutes a “point
source,” 33 U.S.C. § 1362(14). Further, the “point source”
definition expressly exempts “agricultural stormwater
discharges and return flows from irrigated agriculture.”
10 OLYMPIC FOREST COALITION V. COAST SEAFOODS
33 U.S.C. § 1362(14). The Act does not exempt point source
conveyances, such as pipes, ditches, and channels, that
discharge pollutants from aquatic animal production facilities
that are not CAAPFs.
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 1181, 1185–86 (9th Cir. 2002) (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
OLYMPIC FOREST COALITION V. COAST SEAFOODS 11
from that facility, can be regulated as a point source only if it
is a CAAPF. That is, according to Coast, pipes, ditches, and
channels are not point sources if they discharge pollutants
from an aquatic animal production facility that is not a
CAAPF. A description of the EPA’s CAFO regulations
shows why Coast is right in contending that the text of the
CWA is unclear with respect to CAFOs, but wrong in
contending that the lack of clarity is relevant to the question
before us.
As indicated above, a “concentrated animal feeding
operation,” or CAFO, is listed in § 1362(14) as a point
source. There are two subcategories of the statutory category
CAFO.
The first subcategory is a CAFO for land-based animals.
This subcategory, called a CAFO in EPA regulations, is
defined in 40 C.F.R. § 122.23. The criteria specified in the
regulation are quite elaborate, and it is not necessary to
describe all of them here. They include such things as the
number and type of animals (e.g., 700 mature dairy cows,
2,500 swine each weighing 55 pounds or more, 55,000
turkeys), id. § 122.23(a), (b)(4), (6), and several factors
relevant to designation as a CAFO (e.g., the size of the
feeding operation and the amount of waste reaching waters of
the United States, the location of the feeding operation
relative to waters of the United States, and the means of
conveying animal wastes into waters of the United States).
Id. § 122.23(c)(2).
The second subcategory is a CAFO for aquatic animals.
This subcategory, called a CAAPF in EPA regulations, is
defined in 40 C.F.R. § 122.24. There are two ways in which
an aquatic animal production facility may be designated a
12 OLYMPIC FOREST COALITION V. COAST SEAFOODS
CAAPF. First, a facility is a CAAPF if it meets the criteria
set forth in Appendix C to 40 C.F.R. § 122. See 40 C.F.R.
§ 122.24(b). For cold-water aquatic animals such as salmon
and oysters, a facility must meet the following criteria. The
facility must “discharge at least 30 days per year”; it must
produce at least 9,090 “harvest weight kilograms . . . of
aquatic animals per year”; and it must feed at least “2,272
kilograms . . . of food during the calendar month of
maximum feeding.” Appendix C (a). Second, a facility that
does not meet the criteria of Appendix C may be designated
a CAAPF by the Director of the EPA, or by an authorized
state official, on a case-by-case basis after an in-person
inspection of the facility. 40 C.F.R. §§ 122.24(b)–(c),
122.25(a). Factors to be considered in making such a
designation are: “(i) The location and quality of the receiving
waters of the United States; (ii) The holding, feeding, and
production capacities of the facility; (iii) The quantity and
nature of the pollutants reaching waters of the United States;
and (iv) Other relevant factors.” Id. § 122.24(c).
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
OLYMPIC FOREST COALITION V. COAST SEAFOODS 13
purport to tell us whether pipes, ditches, and channels that
discharge effluents from non-concentrated aquatic animal
production facilities are point sources.
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,
14 OLYMPIC FOREST COALITION V. COAST SEAFOODS
ditches, and channels. To the degree that such a facility
discharges pollutants through pipes, ditches, and channels,
those pipes, ditches, and channels are point sources. If they
were not point sources, a non-concentrated aquatic animal
production facility would be free to pollute at will, exempt
from any regulation under the CWA and the NPDES system.
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 40 C.F.R. § 122.24, Appendix C, and
has not been designated a CAAPF by the Director or an
authorized state official applying the factors listed in
§ 122.24(c), the facility is necessarily not a significant
polluter. Therefore, argues Coast, it does not make sense to
characterize as point sources pipes, ditches, and channels that
discharge pollutants from non-concentrated aquatic animal
production facilities. Coast’s argument is refuted in the very
case before us.
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
OLYMPIC FOREST COALITION V. COAST SEAFOODS 15
and concurred with Dr. Rensel’s findings that discharge from
facility was unlikely to alter the Quilcene Bay water quality.”
Ecology thus determined that Coast’s hatchery did not
meet the criteria of a CAAPF specified in § 122.24, Appendix
C. That factual determination is not disputed. Ecology
further determined that the hatchery did not meet the criteria
for designation as a CAAPF under § 122.24(c). The manner
in which Ecology made this second determination reveals the
flaw in Coast’s argument.
In concluding in 2013 and again in 2016 that Coast’s
hatchery is not a CAAPF under § 122.24(c), Ecology relied
on the Rensel Report, which was commissioned and paid for
by Coast. There is no indication in Ecology’s July 29, 2016,
letter to Coast that Ecology ever conducted its own
assessment of pollutants discharged from the hatchery, or that
it considered any other source of information than the Report.
According to the complaint, significant amounts of chlorine
are discharged from Coast’s hatchery through pipes, ditches,
and channels. However, Rensel Associates failed to test for
chlorine, and the Report upon which Ecology relied
accordingly reported no chlorine discharges. Assuming, as
we must, that the allegations in the complaint are true, there
are discharges of chlorine from the hatchery’s pipes, ditches,
and channels that require an NPDES permit.
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
16 OLYMPIC FOREST COALITION V. COAST SEAFOODS
required to obtain an NPDES permit for its Totten Inlet
mussel-harvesting rafts located in Puget Sound. Suspended
from the rafts were ropes on which mussels grew until they
were harvested. The mussels were nourished by nutrients
naturally found in the water of the Sound. As a “byproduct
of their metabolism,” the mussels produced and released into
the water “particulate matter, feces and pseudo-feces,” and
generated “ammonium and inorganic phosphate” that
dissolved in the water. Id. at 1010.
Plaintiff contended that Taylor’s rafts were point sources
under § 1362(14). We disagreed. We held that the
particulate matter, mussel feces, and other “natural
byproduct” of mussels were not “pollutants” within the
meaning of the CWA. Id. at 1016. In the alternative, we held
that the mussel rafts were not CAAPFs, and therefore not
point sources, because defendant Taylor did not feed the
mussels. The rafts therefore did not meet the criteria for
classification as CAAPFs under 40 C.F.R. § 244.24,
Appendix C. Id. at 1018.
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
OLYMPIC FOREST COALITION V. COAST SEAFOODS 17
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.18 OLYMPIC FOREST COALITION V. COAST SEAFOODS
As Coast has pointed out in its briefing to us, CAAPFs are
not conveyances in the sense of conduits, such as pipes,
ditches, and channels. Rather, in the terminology used by the
EPA, they are facilities, as the phrase “concentrated aquatic
animal production facilities” indicates. These facilities are in
and of themselves point sources, whether or not they use
conduits such as pipes, ditches, channels to introduce
pollutants into navigable waters. Plaintiff in APHETI appears
to have recognized the distinction between conduits such as
pipes, ditches, and channels, on the one hand, and facilities,
on the other. It argued that if the rafts were not CAAPFs, one
kind of “facility” listed as a point source in § 1362(14), they
could be “vessel[s] or other floating craft,” another kind of
facility listed as a point source. Id. We rejected that
argument in APHETI, concluding that an aquatic animal
production facility could only be a point source as a
“concentrated aquatic animal production facility,” and not 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
OLYMPIC FOREST COALITION V. COAST SEAFOODS 19
aquatic animal production facilities are point sources within
the meaning of 33 U.S.C. § 1362(14).
AFFIRMED.