Posted November 21, 2013
In Pace v. Bonham,
No. 12-cv-05610, 2013 WL 5945799, (N.D. Cal. November 4, 2013), the United
States District Court for the Northern District of California dismissed a case
which alleged that the California Department of Fish and Wildlife’s practice of
stocking fish in lakes violated the Clean Water Act (CWA). For a copy of the decision, please contact
the National Agricultural Law Center at nataglaw@uark.edu.
Background
The plaintiffs, Felice Pace of Del Norte County and
Wilderness Watch, filed the lawsuit to challenge the Department’s fish stocking
program. Id. at *1. The plaintiffs
argued that when the Department releases native and non-native fish into lakes
in California, it is discharging “biological materials” that are “pollutants”
under the CWA § 1362(6). Id.
Defendants filed a motion to dismiss.
Id.
Analysis and Holding
The district court dismissed the lawsuit, holding that
the stocking of lakes with native and non-native fish did not violate the
CWA. Id.
at *4.
Under the CWA, any “discharge” of a pollutant from a
point source into navigable waters of the United States is unlawful unless the
discharge is covered by an NPDES permit.
Association to Protect Hammersley
v. Taylor Resources, 299 F.3d 1007, 1009 (9th Cir. 2002) (quoting 33 U.S.C.
§ 1251(a)). “Biological materials” are
included in the CWA’s definition of “pollutant.” 33 U.S.C. §1362(6). In Hammersley,
the court held that “biological materials” covered by the CWA were the “waste
product of a transforming human process” or the “waste product of a human or
industrial process.” Id. at *2 (quoting 299 F.3d at
1017). The court reasoned that fish do
not fall into the Hammersley
definition of “biological materials,” and thus ruled that the CWA does not
apply. Id. at *3.
The Lake County News and Courthouse News Service
reported on the case here
and here. For more information on the Clean Water Act,
please visit the National Agricultural Law Center’s website here.
