Taking the "mussel" out of the Clean Water Act.

• Author: Spencer-Scheurich, Corinna
• Position: 2002 Ninth Circuit Environmental Review - Case Note

1. INTRODUCTION II. ASSOCIATION TO PROTECT HAMMERSLEY, ELD, AND TOTTEN INLETS V. TAYLOR RESOURCES. THE FACTUAL BACKGROUND III. THE "POLLUTANT" ELEMENT A. The Ninth Circuit's Analysis B. The "Pollutants" 1. Taylor's "Additions" to the Water of Puget Sound 2. The Mussels as "Pollutants" 3. The Byproducts as "Pollutants" C. The Harm Requirement D. Waste Product Requirement IV. "POINT SOURCE" ELEMENT A. The Ninth Circuit's Analysis B. An Alternative Application of Costle C. Taylor's Facilities as Statutory "Point Sources" D. Alternative Challenges to the "Concentrated Aquatic Animal Production Facility" Regulations 1. Statutory Authority Challenge 2. Arbitrary and Capricious Challenge V. CONCLUSION I. INTRODUCTION

   The Clean Water Act (CWA) (1) seeks to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (2) To achieve this lofty goal, the CWA makes the "discharge of any pollutant by any person ... unlawful" without a National Pollution Discharge Elimination System (NPDES) permit. (3) However, this prohibition is a narrow approach to the broader goal because it does not require a permit for all pollution that affects the integrity of water. Instead it only requires a permit for the CWA's defined terms: a "discharge" of a "pollutant." Furthermore, the prohibition can be broken down into five elements: 1) a discharge/addition of 2) a pollutant 3) from 4) a point source 5) into a navigable water. These elements can be analyzed separately, despite the fact they overlap. (4)

   In Association to Protect Hammersley, Eld, and Torten Inlets v. Taylor Resources (APHETI), (5) the Ninth Circuit addressed whether the owner of mussel production facilities violated the CWA by not obtaining a permit. (6) In analyzing whether the facilities had discharged a pollutant, the Ninth Circuit looked solely at the "pollutant" and "point source" elements. (7) Finding that the facilities neither discharged a "pollutant" nor were "point sources," (8) the Ninth Circuit determined that they were not covered by the CWA and did not need a NPDES permit. (9)

   This Chapter dissects the court's decision. Part II relates the particular facts of APHETI. Part III first reviews the Ninth Circuit's decision on the "pollutant" element before turning to a discussion of possible "pollutants" that the Ninth Circuit did not address, ultimately suggesting that a broader definition of "pollutant" is appropriate under the CWA. Finally, Part IV discusses the Ninth Circuit's analysis of the "point source" element, particularly the court's interpretation of a problematic Environmental Protection Agency (EPA) rule exempting some facilities based on size and the amount they pollute.

2. ASSOCIATION TO PROTECT HAMMERSLEY, ELD, AND TOTTEN INLETS V. TAYLOR RESOURCES: THE FACTUAL BACKGROUND

   In APHETI, a nonprofit organization, the Association to Protect Hammersley, Eld, and Totten Inlets (APHETI), brought a citizen suit under the CWA against Taylor Resources (Taylor), a company that farmed mussels on floating rafts in Puget Sound. (10) APHETI claimed Taylor violated the CWA by discharging pollutants without a NPDES permit. (11) APHETI pointed to Taylor's rafts as an unregulated source of pollutants. (12)

   In its two facilities at Totten Inlet in Puget Sound, Taylor produced gallo mussels (Mytilus galloprovincialis) by placing mussel larvae on ropes attached to floating rafts. (13) The company did not add food to the water; the mussels matured by filtering the necessary nutrients out of the waters of Puget Sound. (14) As the mussels grew, they "produce[d] and release[d], as particulate matter, feces and pseudo-feces, and they generate[d] dissolved materials in the form of ammonium and inorganic phosphate." (15) Taylor's facilities produced more than twenty thousand pounds of gallo mussels each year. (16)

   The district court granted summary judgment in favor of Taylor, finding that it had not "discharge[d] a pollutant" and that the "mussels and mussel rafts were not 'point sources.'" (17) On appeal, therefore, the issue before the Ninth Circuit was whether Taylor's mussel facilities discharged any pollutants under the CWA. (18) The court decided in the alternative that the byproducts of the mussels were not "pollutants" and that the mussel facilities were not "point sources." (19) Thus, the court held that Taylor's facilities were not covered by the CWA and did not require a permit. (20)

3. THE "POLLUTANT" ELEMENT

   1. The Ninth Circuit's Analysis

      The Ninth Circuit began by analyzing "whether the materials naturally released by gallo mussels are 'pollutants' under the Clean Water Act." (21) First, the court examined the plain meaning of the CWA's explicit definition of "pollutant," which includes, among other things, "biological materials." (22) Finding the meaning of "biological materials" to be unclear, the court used the doctrine of ejusdem generis to clarify that meaning. (23) This canon of construction requires a general term in a list be interpreted as belonging to the same type as the more specific terms in that list. (24) By examining the other specifically listed pollutants in the CWA, (25) the court determined that it was likely that "biological materials" could not be broadly interpreted, but instead had to signify more narrowly a "waste product of some human process." (26)

      To strengthen this assertion, the court next examined one of Congress's explicit goals for the 1972 Amendments to the CWA: the protection of waters for the propagation of shellfish. (27) The court reasoned that it would be "anomalous to conclude" that Congress meant to protect shellfish, while simultaneously prohibiting the discharge from the shellfish without a permit. (28) To further emphasize this point, the court pointed out that the record showed the mussels were not causing any "appreciable or significant damage" to the environment. (29) After considering fact variations that would create "pollutants" under the CWA, (30) the Ninth Circuit summarized that "naturally occurring" biological materials are pollutants under the CWA only when they have been "altered by a human or industrial process and, as waste materials in significant amounts, might affect the biological composition of the water." (31) Then, following that line of reasoning, the court decided that the byproducts of the gallo mussel did not qualify as a waste product of a human or industrial process because the gallo mussel had been naturally reproducing in Puget Sound since its introduction to the sound in the 1970s. (32) Accordingly, the Ninth Circuit found that the byproducts were not pollutants under the CWA and held that Taylor was not in violation of the CWA for operating without a NPDES permit. (33)

   2. The "Pollutants"

      The Ninth Circuit's analysis of whether Taylor's facilities discharged "pollutants" into Puget Sound suffers from at least three problems. First, possibly in its rush to dispose of a case that seems factually straightforward, the court did not discuss exactly what substances had been "discharged." While seemingly irrelevant, given the court's eventual disposal of the case based on two other elements, the exercise of discussing the "addition" element provides a useful framework for discussing whether the additions are "pollutants." Second, the court required that the additions cause harm in order to be "pollutants," contrary to the language of the CWA and Supreme Court case law. Finally, the Ninth Circuit took an inconsistently narrow reading of the term "biological materials."

      1. Taylor's "Additions" to the Water of Puget Sound

      The term "discharge of a pollutant" is defined to include "any addition of any pollutant to navigable waters." (34) Taylor's placement of thousands of mussels in Puget Sound would appear to be an "addition." (35) The mussel "seeds" or larvae are placed on ropes that are lowered from a raft into Puget Sound and kept there until the mussels fully mature. (36) Not only does this activity satisfy a plain meaning interpretation of "addition," but EPA likewise has interpreted "addition" to occur when a "point source itself physically introduces a pollutant into water from the outside world." (37) This interpretation was upheld by the D.C. Circuit in National Wildlife Federation v. Gorsuch. (38) Thus, Taylor's lowering of the larvae from the raft into the water easily falls under this definition of "addition."

      Second, the mussels that are attached to the ropes release byproducts continuously as the mussels grow to edible size. (39) These byproducts include shells that wash up on the beaches of Totten Inlet, feces, and dissolved ammonium and inorganic phosphate. (40) The Ninth Circuit, while not fully addressing the "addition" element, (41) did admit, "There is no doubt that mussel byproduct and mussel shells are released from Taylor's facilities, and ... they are adding something." (42) Thus, both mussels and their byproducts are "additions." The question then is whether they are "pollutants."

      2. The Mussels as 'Pollutants"

      Even the Ninth Circuit's own narrow definition of "biological materials" in APHETI requires a finding that the mussels themselves are "pollutants" under the CWA. In APHETI, the Ninth Circuit determined that to be "pollutants," "biological materials" must be "altered by a human or industrial process." (43) The court distinguished the facts of Association of Pacific Fisheries v. Environmental Protection Agency (APF) (44)--where fish were removed from the water, processed, and unusable portions thrown back into the water--from those in APHETI. (45) The Ninth Circuit in APHETI said that the materials in APF, "although naturally occurring" had been altered by the "industrial process." (46)

      Although the Ninth Circuit in APHETI said that the byproducts of the mussels "are the result of the natural biological processes of the mussels," the existence of these mussels themselves in Puget Sound did not occur through a natural...