Mussel Byproducts from Harvesting Rafts are Not Pollutants

Association to Protect Hammersley, Eld, and Totten Inlets v. Taylor Resources, Inc., 299 F.3d 1007 (9th Cir. 2002).

Stephanie Showalter, J.D., M.S.E.L.

The Ninth Circuit Court of Appeals recently ruled that a mussel harvesting facility in Puget Sound did not violate the Clean Water Act by operating without a discharge permit. The court adopted a narrow interpretation of the term “pollutant,” excluding the natural byproducts of mussels grown utilizing harvesting rafts.

Background
The Clean Water Act prohibits the “discharge of any pollutant by any person” into the navigable waters of the United States unless such discharge is conducted pursuant to a National Pollutant Discharge Elimination System (NPDES) permit issued by the United States Environmental Protection Agency (EPA) or an authorized state agency.1 The Department of Ecology is the state agency authorized to issue NPDES permits in Washington State.

Taylor Resources, Inc. (Taylor) began its mussel-harvesting operations in Puget Sound in the early 1990s. The company operates two facilities, which produce more than 20,000 pounds of mussels per year. Mussel brood stock is attached to suspension ropes anchored to the sea floor and surrounded by netting to prevent predation. Taylor does not add any feed or chemicals to the water to assist in the production of the adult mussels. However, as a result of natural processes, the mussels do produce and release feces, shells, and dissolved materials, such as ammonium and inorganic phosphate, into the Sound.

Prior to beginning operations, Taylor applied for and received all necessary permits required by the Washington State Environmental Policy Act and the National Environmental Policy Act. Taylor, however, operates without a NPDES permit. When Taylor applied for a permit pursuant to the Clean Water Act, the Department of Ecology informed the company that a NPDES permit was not required. The Department took the position that operations like Taylor’s do not violate the Act, because “shellfish farmers do not need to add fish food (nutrients) to the water to promote shellfish growth.”2

The Appeal
Appellants, Association to Protect Hammersley, Eld, and Totten Inlets (APHETI), filed suit against Taylor Resources under the citizen suit provisions of the Clean Water Act. APHETI is an organization composed of approximated 3000 members, residents of the southern shores of Puget Sound. APHETI argued that Taylor’s operations discharged pollutants into Puget Sound in violation of the Act, urging the court to enjoin Taylor from continuing operations until it obtained a NPDES permit for those discharges.

The United States District Court for the Western District of Washington granted summary judgment in favor of Taylor Resources, finding that the mussel-harvesting rafts did not violate the Clean Water Act as the facilities did not discharge a pollutant into the Sound and the rafts were not a point source.3 The Ninth Circuit affirmed the findings of the lower court.

Mussel Byproduct Not a Pollutant
Included in the Clean Water Act’s definition of pollutant are the following: solid waste, sewage, garbage, chemical wastes, biological materials and agriculture waste.4 To determine the scope of the term “pollutant,” the court looked to the general rule of statutory interpretation which states “[w]hen a statute contains a list of specific terms and a general item, we usually deem the general item to be of the same category or class as the more specifically enumerated items.”5 Utilizing this doctrine, the Ninth Circuit read the term “biological materials” narrowly and in context with the other pollutants listed. The court refrained from adopting a general definition of “biological materials”, which would include materials naturally occurring in the environment. Rather, the court stated that because “biological materials” follows the terms solid waste, sewage, garbage, and sewage sludge, it should be interpreted as “waste material of a human or industrial process.”6

In reaching this conclusion, the court discussed the fact that most biological materials considered pollutants under the Act are materials that have been transformed in some way by human activity. For example, if a facility is processing fish or shellfish and discharging skin, scales, shells, etc. into the water, those biological materials have been altered from their natural state by human hands and would require a NPDES permit in order to be discharged into navigable waters. As the mussel shells and the byproduct from the living mussels discharged by Taylor’s facilities “come from the natural growth and development of the mussels and not from a transformative human process,” the court held that those materials are not “biological materials” and, therefore, not a pollutant under the Act.7

Furthermore, the legislative history of the Clean Water Act indicates that Congress did not intend living shellfish and the natural chemical and biological matter emitted from them to be consider pollutants.8 The court reasoned that because Congress listed the protection and propagation of shellfish as one of the goals of the Act, it would be absurd to consider the natural discharges of those same shellfish to be violations of the Clean Water Act.

Harvesting Rafts Not a Point Source
The Ninth Circuit also looked at whether Taylor’s harvesting rafts were point sources subject to regulation under the Clean Water Act. A “point source” is “any discernable, confined and discrete conveyance” and includes concentrated animal feeding operations.9 EPA also regulates Concentrated Aquatic Animal Production Facilities (“CAAPF”) as point sources under the NPDES permit program.10

CAAPF are any operations that grow or hold “[c]old water fish species or other cold water aquatic animals in ponds, raceways, or other similar structures which discharge at least 30 days per year.”11 Although Taylor’s mussel harvesting facilities fall within the statutory definition of a CAAPF, Taylor’s operations are specifically excluded from the EPA regulations because Taylor does not feed the mussels.12 Because Taylor’s operations do not met the feeding requirements, the court stated that the rafts were not point sources.

Conclusion
As the natural byproducts of living mussels are not pollutants as defined by the Act and non-feeding CAAPF operations are not point sources, Taylor Resources was not required to seek, or the Department of Ecology to issue, a NPDES permit for the mussel operations.13

ENDNOTES
1. 33 U.S.C. §§ 1311(a), 1342 (2002).
2. APHETI v. Taylor Resources, 299 F.3d 1007, 1011 (9th Cir., 2002), citing Department of Ecology August 18, 1997 letter to APHETI.
3. Id. at 1011.
4. 33 U.S.C. § 1362(6) (2002).
5. APHETI, 299 F.3d at 1016, citing Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 834 (9th Cir. 1999).
6. Id. at 1016.
7. Id. at 1017-18.
8. Id. at 1016.
9. 33 U.S.C. § 1362(14) (2002).
10. 40 C.F.R. § 122.24(a) (2002).
11. 40 C.F.R. Pt. 122, App. C(a) (2002).
12. EPA excludes “facilities which feed less than 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding.” Id.
13. On September 12, 2002, EPA issued proposed effluent guidelines for the Concentrated Aquatic Animal Production Industry. The guidelines apply to facilities producing 100,000 pounds per year utilizing one of the following production systems: recirculating, flow through, or net pens. EPA issued the guidelines to address concerns regarding the rapid growth of the aquaculture industry, potential for discharge of drugs and chemicals, and potential release of non-native species and pathogens. For more information on the proposed guidelines, visit the EPA’s website at www.epa.gov/guide/aquaculture.

University of Mississippi