Written by: Amie Alexander, JD/MPS Candidate, William H. Bowen School of Law

The United States Court of Appeals for the Ninth Circuit affirmed a 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 (NPDES) permit on March 9, 2018. The court held that pipes, ditches, and channels that discharge pollutants from non-concentrated aquatic animal production facilities are “point sources” which require an NPDES permit. You can read the opinion in its entirety here.

This case originated in the United States District Court for the Western District of Washington. The Olympic Forest Coalition (“Olympic Forest”) filed suit against Coast Seafoods Company (“Coast”) under the Clean Water Act (“CWA”). Olympic Forest argued that Coast’s oyster hatchery’s discharges through pipes, ditches, and channels require an NPDES permit. Coast moved to dismiss the suit, arguing that the oyster hatchery, although an aquatic animal production facility, it can only be regulated  as a “point source” under the CWA if it is a concentrated aquatic animal production facility (“CAAPF”).

The district court denied Coast’s motion to dismiss and held that pipes, ditches, and channels discharging pollutants from its hatchery are point sources requiring NPDES permitting.

On appeal, the Court of Appeals for the Ninth Circuit reasoned that the text of the CWA should be interpreted by the statute’s plain meaning: pipes, ditches, channels, and concentrated animal feeding operations that pollutants into navigable waters are all point sources subject to the NPDES permit requirement. The court thus concluded 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.