The Association to Protect Hammersley, Eld, and Totten Inlets (APHETI), a nonprofit organization consisting of residents of the southern shore of Puget Sound, sued Taylor Resources, Inc. (Taylor), an aquaculture operation specializing in mussels, under the citizen suit provision of the Clean Water Act (CWA). The district court granted Taylor's motion for summary judgment, dismissing APHETI's allegation that Taylor had discharged pollutants from its mussel rafts without obtaining a National Pollutant Discharge Elimination System (NPDES) permit. The Ninth Circuit held that although APHETI had the right to bring a citizen suit on behalf of its members, 1) the Washington Department of Ecology (DOE) was not a necessary party even though it had refused to issue Taylor a NPDES permit, 2) the materials released from Taylor's rafts were not pollutants, and 3) the rafts were not point sources under the CWA. Therefore, the Ninth Circuit affirmed the district court's decision.
Taylor produces mussels by attaching mussel larvae to suspension ropes that are anchored to the sea floor in Puget Sound. Taylor does not add any additional food; the mussels take nutrients out of the seawater. The byproducts of the mussels include "feces and pseudo-feces[,] . . . dissolved materials in the form of ammonium and inorganic phosphate," and mussel shells. Taylor attempted to acquire a NPDES permit from the Washington DOE, but the state agency determined that Taylor was not required to have a permit because it did not add food to the water. APHETI brought a CWA citizen suit against Taylor claiming that the mussel operation violated the CWA by "'discharg[ing] . . . [a] pollutant' from a 'point source' into navigable waters of the United States" without a permit. APHETI sought civil penalties and an injunction to stop the discharge from Taylor's rafts.
The Ninth Circuit first examined Taylor's claim that APHETI could not bring a citizen suit because the DOE would not accept Taylor's application. The court held that the CWA expressly gives citizens the right of enforcement, and nothing in the statutory language or legislative history gives the Environmental Protection Agency (EPA) or the designated state agency the exclusive power to determine what violates the CWA. The court also determined that the DOE was not a necessary party because the purpose of a citizen suit is to enforce the CWA when agencies do not act. Examining Rule 19(a) of the Federal Rules of Civil Procedure, the court concluded that, in the absence of the DOE, complete relief could still be afforded to the parties and that the DOE did not claim an interest in the action.
Next, the Ninth Circuit determined that the mussel shells and other byproducts produced were not "pollutant[s]" under the CWA because they are the natural biological processes of an animal that naturally reproduces in Puget Sound and not "waste product[s] of a transforming human process." To reach this conclusion the court first decided that the term "biological materials," which is included in the statutory definition of "pollutant," is ambiguous. The term could broadly include the mussel byproducts or, under the doctrine of ejusdem generis, could narrowly mean waste that comes from a "human or industrial process." Finding the statute ambiguous, the Ninth Circuit looked at legislative intent, as evidenced by statutory language listing the propagation of shellfish as a goal of the CWA. To the court, this signified that Congress was trying to protect shellfish and that it would be contradictory for the court to find shellfish to be pollutants under the same law. In addition, the court stressed that the record did not show any identifiable harm to the environment caused by the mussel byproducts, and that, in fact, the mussels might improve water quality as filter-feeders. Therefore, the Ninth Circuit concluded that the byproducts of mussels were simply the natural biological processes of an animal already present in the Puget Sound and not a pollutant under the CWA.
Finally, the Ninth Circuit held that Taylor's mussel facility was not a "point source" because the facilities fell into a regulatory exception as Taylor did not add any food to the water. The court started with an EPA regulation that designates "[c]oncentrated aquatic animal production facilities" (CAAPFs) as point sources. Although Taylor's facility fit into the broad definition, the regulation excludes facilities that feed their animals less than a certain amount per month, and the court found that Taylor's operation fell within this exception. The court then declined to examine whether Taylor's operation was a point source under the general statutory definition because that analysis "would render the EPA's CAAPF criteria superfluous and undermine the agency's interpretation of the Clean Water Act." Therefore the court deferred to the agency's regulation and affirmed the district court's decision.