Summary of a Recent
Judicial Development in
Animal Feeding Operations

Removal of Horses Not Enough for Racetrack Operator
to Avoid FWPCA Clean Water Violation

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In United States v. New Portland Meadows Inc., Civil No. 00-507-AS, 2002 WL 31180956 (D. Or. Sept. 9, 2002), the United States District Court for the District of Oregon adopted the rulings of the Magistrate Judge in their entirety. The court granted the United States' motion for partial summary judgment as to defendant racetrack operator's liability under the Federal Water Pollution Control Act (FWPCA) based on the allegedly unauthorized and illegal discharge of pollutants into waters of the United States, and denied the defendant's motion for summary judgment.

Background

The United States (plaintiff) sued the racetrack operator (defendant) for violations of § 309(b) and (d) of the FWPCA, as amended by the Clean Water Act of 1997 and the Water Quality Act of 1987. Id. at *1-3. The plaintiff moved for partial summary judgment on the issue of liability and the defendant moved for summary judgment. Id.

Arguments

The plaintiff argued that the defendant's racetrack operation discharged wastewater and other pollutants on a regular basis into waters of the United States without an National Pollution Discharge Elimination System (NPDES) permit and in violation of a permit issued by the state of Oregon pursuant to § 402 of the FWPCA. Id.

The defendant argued that there was a genuine issue of material fact related to the origin of the contaminants, and therefore summary judgment was unwarranted. Id. at *4. In addition, the defendant cross-motioned for summary judgment, alleging that the plaintiff could not establish that the drainage ditch, into which the defendant allegedly discharged a pollutant, was within the definition of "waters of the United States," or that the discharge was not authorized by an NPDES permit. Id. at *5. To support the former argument on cross-motion, the defendant conceded that the Columbia Slough was a water of the United States, but argued that because the water from the ditch did not move naturally but was instead pumped into the Columbia Slough, the ditch could not be viewed as a tributary of the Columbia Slough. Id. at *6.

Analysis and Holdings

"Section 301(a) of the [Federal Water Pollution Control Act, 33 U.S.C. § 1311(a),] prohibits the discharge of pollutants from a point source into navigable waters of the United States, unless in compliance" with the FWPCA's provisions. Id. at *5. To establish a violation of the FWPCA, "a plaintiff must prove that (1) defendant is a 'person,' (2) who 'discharged' or 'added,' (3) a 'pollutant,' (4) from a 'point source,' (5) into 'waters of the United States,' (6) and the discharge was not authorized by an NPDES permit." Id. (quoting 33 U.S.C. § 1311(a), § 1342).

As to the defendant's "waters of the United States" argument, the court found that the manner (through pumping or naturally flowing) by which the water from the ditch entered the Columbia Slough was irrelevant. Id. at *6-7. All of the water that entered the ditch eventually ended up in the Columbia Slough, whether it flowed naturally or not. Id. at *6. The defendant was well aware of the ultimate destination of its wastewater and created its ditch system with the intent that the wastewater be transported to the Columbia Slough. Id. Ultimately, the court held that the ditch was a tributary of the Columbia Slough and within the definition of "waters of the United States." Id.

The defendant's argument that the discharges were authorized by an NPDES permit failed for two reasons. Id. at *7. First, the defendant did not have an NPDES permit; therefore, the discharges were not authorized by an NPDES permit. Id. Second, assuming that the defendant's permit was an NPDES permit, it did not authorize direct discharges or potentially harmful indirect discharges into state waters. Id.

Finally, the defendant argued that because the horses were removed from the grounds during the period that the plaintiff discovered the alleged violation of the FWPCA, the origin of the pollutants was unknown. Id. at *7-8. The court held that this reasoning did not constitute a genuine issue of material fact. Id. at *8. The racetrack had boarded horses for the previous 55 years, and removing the horses for a short period of time did not remove the defendant's responsibility to dispose of its effluent responsibly. Id.

The case was decided on September 9, 2002.