Summary of a Recent
Judicial
Development in
Animal Feeding Operations
Court Deems Salmon Farm a Point Source Operating
in Violation of the Clean Water Act
Eric H. FoyNational AgLaw Center Research Associate
In United States Public Interest Research Group v. Stolt Sea Farm, Inc., No. CIV.00-149-B-C, 2002 WL 240386 (D. Me. Feb. 19, 2002), the U.S. Public Interest Research Group (PIRG), an environmental group, brought a citizen suit action against a salmon farm operator, Stolt Sea Farms (Stolt), seeking summary judgment on the issue of liability under the Clean Water Act (CWA). Stolt cross-motioned for summary judgment claiming that it was not required to obtain a National Pollution Discharge Elimination System (NPDES) permit and, therefore, was not prohibited under the CWA from discharging pollutants. Id. at *5.
The CWA states that the discharge of any pollutant by any person is unlawful. Id. "Discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." Id. (quoting 33 U.S.C. § 1362(12)). PIRG had the burden of showing that each element existed in order to establish that Stolt violated the Act. Id.
On the issue of adding a pollutant, the court found that Stolt put fish into Cobstook Bay that were not naturally present in the bay, and that the non-native fish constituted the addition of biological material-a pollutant under the CWA. Id. at *6. As opposed to disputing the addition of a pollutant into navigable waters issue, Stolt claimed that his operation was not a point source, for two reasons: (1) the phrase "ponds, raceways, or other similar structures," listed as a point source in Appendix C of the CWA, excluded Stolt's offshore sea cages because they were not land-based, and (2) net pen operations do not involve discernible discharging pipes and therefore are not point sources subject to NPDES permitting. Id. at *10. In finding that the Environmental Protection Agency (EPA) did not exclude land-based fish farms from CWA regulation and in keeping with the Act's definition of point source and twenty years of case law, the court deferred to the EPA's interpretation of the CWA's Appendix C phrase "ponds, raceways or other similar structures." Id. at *10-12. The court stated that the EPA interpreted the Appendix C phrase to encompass net pen sea farms. Id. at *12.
In sum, Stolt's salmon farms were automatically deemed point sources under the CWA. Because the farms discharged pollutants without an NPDES permit, the court recommended granting PIRG's motion for summary judgment on the issue of liability under the CWA, and denying Stolt's cross-motion. Id. at *17.
The case was decided on February 19, 2002.