## Facts

- A Washington nonprofit organization representing shoreline residents sued a commercial mussel-harvesting company operating floating mussel-growing rafts in Puget Sound.
- The rafts suspended live mussels in the water column; the mussels fed on naturally occurring phytoplankton, and the operator did not add feed or chemicals.
- As the mussels grew, they generated feces, pseudofeces, shell fragments, and other organic material that fell into surrounding waters and onto the seabed.
- The plaintiffs alleged these materials accumulated under the rafts, degraded water quality, and altered benthic conditions in Hammersley, Eld, and Totten Inlets.
- The operator consulted the state environmental agency and was advised that an NPDES permit was not required.
- The plaintiffs filed a Clean Water Act citizen suit alleging unlawful discharge of pollutants from a point source without an NPDES permit, seeking declaratory and injunctive relief and civil penalties.
- The district court granted summary judgment to the operator, and the plaintiffs appealed.

## Issues

1. Whether shells, feces, and related biological byproducts released from live mussels grown on rafts are “pollutants” under the Clean Water Act, 33 U.S.C. § 1362(6).
2. Whether the mussel-growing rafts are “point sources” under 33 U.S.C. § 1362(14), including whether they qualify as “Concentrated Aquatic Animal Production Facilities” under EPA regulations requiring NPDES permitting.
3. Whether intervening agency developments affected justiciability (including mootness) so as to bar merits review.

## Decision

- The Ninth Circuit held the controversy remained justiciable and reached the merits.
- The court affirmed summary judgment for the operator.
- The court held the mussel byproducts at issue were not “pollutants” in the context of the operator’s unfed mussel cultivation.
- The court held the rafts were not point sources requiring NPDES permits because they did not qualify as concentrated aquatic animal production facilities and did not otherwise fit the relevant statutory and regulatory definitions.

## Legal Principles

- Clean Water Act liability for unpermitted discharges requires a “discharge of any pollutant” from a “point source” into navigable waters. 33 U.S.C. §§ 1311(a), 1362(12), (14).
- Although “pollutant” includes “biological materials” and “waste,” the term is construed in context to target human-caused additions associated with industrial, municipal, or agricultural processes, not the ordinary biological byproducts of live aquatic organisms filtering naturally occurring nutrients.
- EPA’s concentrated aquatic animal production facility framework focuses on intensive aquaculture characterized by human-supplied feed and related waste; unfed shellfish cultivation on floating rafts does not fall within that category as applied here.
- A court applies the statute and implementing regulatory categories to determine NPDES coverage; broad statutory purpose does not expand permitting duties beyond the operative definitions and regulations.

## Conclusion

The Ninth Circuit affirmed judgment for the mussel operator, concluding that natural byproducts from unfed mussels grown on floating rafts were not Clean Water Act “pollutants” in this setting and that the rafts were not point sources requiring NPDES permits.


Ass’n to Protect Hammersley, Eld & Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007 (9th Cir. 2002)