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

I.   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.

II. 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)

III. THE "POLLUTANT" ELEMENT

A. 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)

B. 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 process. (47) Taylor first grows its mussel larvae in a hatchery and then transplants them. (48) Taylor's placing of the larvae into the water with the goal of growing them to an edible size for harvest and eventual sale and consumption is clearly the alteration of an otherwise naturally occurring object for human and even industrial use. (49) Therefore, according to the Ninth Circuit's own reasoning, Taylor's facility needs a NPDES permit.

Furthermore, this argument is strengthened by one of the court's supporting arguments. Because the CWA defines "pollution" as the "manmade or man-induced alteration of the chemical, physical, biological, and radiological integrity of water," (50) the court concluded that a "pollutant" must be something that causes a man-induced alteration of water integrity. (51)

In APHETI, humans add sufficient larvae to produce twenty thousand pounds of mussels for the purpose of human consumption. (52) The introduction of this quantity of mussels into Puget Sound is a "man-induced alteration" of the normal aquatic ecosystem. (53) The mussels inevitably are changing the composition of the water, because they must extract nutrients out of the water that would otherwise be available to other triter feeders. (54) Thus, the mussels' extraction of nutrients from the water, not to mention the mussels' release of byproducts into the water, is certainly an "alteration of the ... integrity of the water" for purposes of the CWA. (55) Therefore, the Ninth Circuit's own reasoning in APHETI should require the conclusion that the mussels themselves are "pollutants" under the CWA.

3. The Byproducts as "Pollutants"

When the Ninth Circuit analyzed whether the byproducts of the mussels were pollutants, it concluded that the byproducts of the mussels were not "biological materials" under the CWA. (56) In particular, the court emphasized that the byproducts were naturally occurring and not part of "a transforming human process." (57) However, just as the mussels themselves are part of an industrial process, so too are the byproducts of Taylor's mussels.

While the court found that the byproducts of mussels are naturally present in the water of Puget Sound, (58) the byproducts of these specific mussels are the consequence of the industrial pursuit of farming mussels for human consumption. Taylor does not gather mussels from those that grow as part of the natural ecosystem of the Sound. Instead the mussel larvae are brought from an inland facility and then transplanted. Therefore, the byproducts, a result of the production of full-size mussels, are added to the water by a human process that uses an animal for an industrial purpose and on an industrial scale.

C. The Harm Requirement

The Ninth Circuit partially based its holding that mussel byproducts are not "pollutants" under the CWA on the fact that the byproducts do "not add any identifiable harm." (59) This position is reconcilable with neither the CWA mandate that the "discharge of any pollutant" is illegal without a NPDES permit nor the subsequent definition of "pollutant," which does not limit or define any of the examples by either the amount or the fact of damage. (60) Thus, under the simplest, plain meaning interpretation, even de minimis harm caused by a pollutant still would qualify as a pollutant if the statutory definition fits. The Supreme Court has affirmed this analysis by recognizing that harm is not a necessary part of the definition of "pollutant." (61)

For example, in Weinberger v. Romero-Barcelo the Navy discharged ordnance into the waters of Puerto Rico, and this practice was challenged as a violation of the CWA. (62) In its defense the Navy argued, as Taylor did in APHETI, that there was no "appreciable harm to the environment." (63) The district court found that despite the ordnance, the waters remained of pristine quality and that the Navy's use of the area for practice "'constitute[d] a positive factor in its overall ecology,'" mainly because it prevented overfishing in the area. (64) However, "munitions" is one of the specific examples of a "pollutant" listed in the definition. (65) Thus, the district court in Weinberger found that the Navy had violated the CWA. (66) Upon reviewing the district court's equitable powers in the case, the Supreme Court left untouched the lower court's finding that a "pollutant" had been discharged and did not inquire into the amount of damage that the Navy had done to the watery Therefore, the Supreme Court allowed "munitions" to have a plain meaning and relied on the district court's decision that the Navy had violated the CWA for discharging a pollutant without a permit. (68)

The mussels and their byproducts are similar to munitions. The statute expressly defines "pollutant" to include both "munitions" and "biological materials," (69) and their addition from a point source into a navigable body of water, regardless of the effect upon the quality of the water, is illegal under the CWA without a permit. (70) Even though the mussels as a species are not foreign to water, as munitions are, the particular mussel larvae placed by Taylor into the water of Puget Sound are foreign to it. Furthermore, Taylor's mussels continuously remove nutrients from the water and add byproducts. (71) These byproducts, which inevitably change the quality of the water, may impair the quality of the water more than munitions that may not change the water in any manner.

Additionally, if the NPDES permit program only regulates "significant" harm, then it is unclear what the criteria would be for regulating any "discharge of a pollutant" under what would essentially become another element to add to the five-part test that the CWA already requires. (72) Many more forms of water pollution would go unregulated as facilities that otherwise qualified would be exempted because of the quantity they pollute. Instead, as the CWA is interpreted currently, the statute allows for the regulation of de minimis harm in its flexibility in regulation: EPA has the ability to tailor its type of regulations to the type and quantity of pollutants discharged. (73) Therefore, the CWA is a tool that should be allowed to address the aggregate of water pollution as it confronts even small harm polluters, because even facilities that create a small amount of harm may be part of larger environmental issues. (74)

Accordingly, a finding that mussel farming does not add "pollutants" to the water, based on a determination that one particular farm has only negligible effects, allows the cumulative negative repercussions of shellfish farming generally to disappear from regulatory sight. (76) As the country's need for fish increases and the wild populations become less viable, (76) the numbers of shellfish and other types of fish farms will increase along with possible environmental problems. (77) Because the CWA is designed to maintain the integrity of the water, (78) it is "anomalous to conclude" that the statute would not require the regulation of Taylor's mussels and their byproducts. (79)

19. Waste Product Requirement

Finally, the Ninth Circuit stressed that any "biological material" would have to be a "waste product" of some human process. (80) In its opinion, the court developed this concept through its comparison of "biological materials" to the other listed examples of "pollutant" under the doctrine of ejusdem generis. (81) However, not all "pollutants" under the CWA can be classified as "waste products."

For example, in Weinberger, the Supreme Court left untouched the lower court's decision that the "munitions" the Navy added to the waters off Puerto Rico were not "waste products." (82) At the time that the ordnance was added into the water, it was serving a useful purpose: The Navy was firing purposefully into the water for weapons training. (83) In addition, the Ninth Circuit has not always required that "pollutants" be "waste products." In Borden Ranch Partnership v. United States Army Corps of Engineers (84) the Ninth Circuit examined a process called deep ripping, which loosens the bottom layer of a wetland in order to drain the water and make the land suitable for agriculture. (85) The court found that the materials in the bottom layer, as "biological materials," were "additions," and subsequently "pollutants." (86) However, the loosened material was not a "waste product," but instead was the focus of the entire activity. As a result, the Ninth Circuit's assertion that a "pollutant" must be a "waste product," thereby limiting "biological material" to waste biological material, is contrary to its own case law as well as that of the Supreme Court. Therefore, both the byproducts and the mussels themselves should have qualified under the CWA's "pollutant" element, and the Ninth Circuit should not have foreclosed regulation based on this element.

IV. "POINT SOURCE" ELEMENT

A. The Ninth Circuit's Analysis

The Ninth Circuit's second and alternative reason for holding that Taylor was not in violation of the CWA was that Taylor's facilities were not "point sources." (87) APHETI argued that the facilities fell under both the general statutory definition of point source--"discernible, confined, and discrete conveyance"--and a specific definition--"vessel or other floating craft." (88) The court did not respond to the merits of either of these arguments. (89) Instead, the court relied on an EPA regulation that automatically makes a "concentrated aquatic animal production facility" (CAAPF) a point source. (90)

The regulation defines a CAAPF as a "hatchery, fish farm, or other facility ... [that] contains, grows or holds aquatic animals" in one of two categories (either cold water or warm water aquatic animals) as long as the facility "discharge[s] at least 30 days per year." (91) However, the regulation then states that the group of qualifying cold water facilities "does not include: (1) Facilities which produce less than 9,090 harvest weight kilograms (approximately 20,000 pounds) of aquatic animals per year; and (2) Facilities which feed less than 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding." (92)

The Ninth Circuit found that Taylor's facilities do contain cold water aquatic animals and discharge at least 30 days per year. (93) However, the Ninth Circuit interpreted the limiting language of the CAAPF regulation to mean that "EPA's regulations expressly exclude from the definition of 'point source' facilities like Taylor's," which 'do not add food for the mussels. (94) Thus, the court determined that, by falling outside of the CAAPF regulation, a facility was automatically not a statutory "point source" either. Despite APHETI's arguments that Taylor's facilities nonetheless qualified under the statutory definition of "point source," the court said that to find the facilities were point sources under some other category would render the EPA regulation "superfluous." (95) To support this proposition the court cited Natural Resource Defense Council, Inc. v. Costle (96) as stating, "EPA was given the power under the Act to define point sources." (97) Therefore, to avoid "undermin[ing]" EPA's interpretation of the CWA, the court held that the facilities were not "point sources." (98)

B. An Alternative Application of Costle

According to the Ninth Circuit's analysis of EPA's CAAPF regulation, small facilities or facilities that do not feed their animals more than a certain amount are "exclude[d] from the definition of 'point source.'" (99) In addition, the Washington Department of Ecology, which is authorized to administer the NPDES program in Washington, (100) refused Taylor's application for a NPDES permit because Taylor does not add food to the water. (101) However, under a more complete reading of the D.C. Circuit decision in Costle than the Ninth Circuit gave in APHETI, a regulation that excludes what would otherwise be a point source on the basis of size alone violates the CWA. (102) Moreover, less than three months after APHETI another panel of the Ninth Circuit reaffirmed that this reading of Costle is the law of the Ninth Circuit. (103) Thus, despite its purported reliance on Costle, the APHETI panel's decision is inconsistent with that decision. (104)

In Costle, the D.C. Circuit examined the authority of the Administrator of EPA to make exemptions under the NPDES permit program. (105) A conservation organization challenged EPA's 1973 CWA regulation that, in part, exempted "concentrated animal feeding operations" (CAFOs) that held fewer than a certain number of animals. (106) CAFOs are specifically listed as an example in the statutory definition of "point source." (107) EPA argued that it had the ability to interpret "point source," and therefore would interpret "concentrated animal feeding operation" under the CWA, and raised several infeasibility defenses, claiming that if it could not exempt some point sources, the number of applications would overwhelm the agency. (108)

The court in Costle accepted, as the decision in APHETI suggests, that "there is room here for some exclusion by interpretation" and that EPA had the ability to determine the conditions of the permit. (109) However, even though EPA had the ability to interpret the meaning of "point source," the D.C. Circuit held that EPA did not have the power to "exempt categories of point sources from the permit requirements" of the CWA. (110) Therefore, because it was clear from the legislative history of the CWA that Congress intended the CWA to have teeth, the court held that EPA could not enforce regulations that would in effect revise the CWA to exempt point sources that were unavoidably covered by the statutory language. (111)

As discussed above, three months after APHETI, the Ninth Circuit reaffirmed that Costle is the rule in the Ninth Circuit. In League of Wilderness Defenders/Blue Mountain Biodiversity Project v. Forsgren (League of Wilderness), (212) environmental groups sued the United States Forest Service (USFS), in part, for spraying pesticides from an airplane without a NPDES permit. (113) USFS argued that regulatory exemptions for silviculture applied to this activity, and therefore the airplane was not a "point source." (114) However, the court found that, even if the regulations were meant to exempt aerial spraying over bodies of water, EPA could not exempt "point sources" that "clearly [met] the statutory definition." (115) The Ninth Circuit relied on the D.C. Circuit's decision in Costle that EPA had the authority to define "point source" only "where there is room for reasonable interpretation of the statutory definition." (116) Thus, because aerial spraying was clearly covered by the CWA's "discrete conveyance" part of the "point source" definition, the Ninth Circuit held that a permit was necessary. (117)

Costle and League of Wilderness are directly on point if the EPA's CAAPF regulation, as the Ninth Circuit says, "exclude[s]" point sources based on their size or the amount of feed that they put into the water. (118) Therefore, the Ninth Circuit should have looked at the regulation to determine if it was excluding from regulation facilities that would otherwise qualify as point sources. If so, like the court in Costle, the Ninth Circuit should have found the regulations unlawful under the CWA for identifying a point source and then refusing to regulate it. (119) Then, the court should have examined whether Taylor's facilities fit under the statutory definition of "point source," as the court did in League of Wilderness. (120)

However, the court did not need to find EPA's CAAPF regulation unlawful in order to hold that Taylor's facilities were point sources. The CAAPF regulations actually say that the definition of CAAPF "does not include" small facilities. (121) The failure to include small facilities within the definition of a CAAPF does not as a logical or linguistic matter exclude small facilities from the definition of a point source. The APHETI court, nevertheless, read the failure to include small facilities as an exclusion from the definition of a point source, because otherwise, it thought that there would be no purpose to defining a CAAPF. This was an error; EPA could well have wished to make a bright line rule for large facilities, while leaving to a case by case determination the treatment of smaller facilities. If the court had found that the regulation simply did not include small facilities as CAAPFs, then these facilities would be subject to regulation based on whether they fit the statutory definitions. (122) Therefore, no matter whether the CAAPF regulation "excludes" or simply "does not include," the Ninth Circuit should have considered APHETI's arguments and determined whether or not Taylor's facilities met the statutory definition of "point source."

C. Taylor's Facilities as Statutory "Point Sources"

The Ninth Circuit should have responded to APHETI's arguments, and found that Taylor's facilities were "point sources" under the statutory definition. According to the Ninth Circuit case law, the "point source" definition is "extremely broad." (123) Thus, looking at the general definition of "point source," the court easily should have found the

mussel facilities to be "point sources."

The statutory definition of "point source" is "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged." (124) The CAAPF regulations that the Ninth Circuit based its decision in APHETI are, in turn, based on the CAFO statutory example of "point source." (125) However, application of the general definition of "point source" reveals Taylor's facilities to be "discrete conveyance[s]," and more particularly "vessel[s] or other floating craft[s]." (126)

Other cases confirm this reading of the CWA. For example, in League of Wilderness, the term "vessel" was given a plain, but broad, meaning. (127) In that case, the court easily found that a USFS airplane was a "vessel" and a "discrete conveyance" when it sprayed pesticide over a body of water. (128) The mussels at issue in APHETI hang from suspension ropes that are attached from large, floating rafts to the sea floor. (129) These rafts seem clearly to be within the term "floating craft." In addition, a "discrete conveyance" has occurred as the ropes are lowered into the water from the raft. Therefore, Taylor's facilities easily fit under the statutory definition of "point source."

D. Alternative Challenges to the "Concentrated Aquatic Animal Production Facility" Regulations

Because the mussel facility is a point source under the statutory definition of the CWA, the CAAPF regulations are irrelevant to the question. But APHETI may make it difficult to challenge smaller aquatic animal facilities' lack of NPDES permits. (130) However, two additional avenues are available to challenge the CAAPF regulations under the Administrative Procedure Act (APA). (131) No one raised these in APHETI. First, the regulations lack statutory authority; (132) second, they are arbitrary and capricious. (133)

1. Statutory Authority Challenge

If, as the Ninth Circuit stated, small facilities are exempted from the CAAPF category, and thus also the CWA, the CAAPF regulations have questionable statutory authority. According to the Supreme Court's decision in Chevron USA., Inc. v. Natural Resources Defense Council, Inc. (Chevron), (134) a court reviewing an agency interpretation of a statute should first look at whether "the intent of Congress is clear." (135) Only when the intent is ambiguous should the court defer to the agency interpretation. (136) Otherwise, the court must make sure that the agency has been true to the intent of Congress. (137) The mussel facilities clearly fit under the plain meaning of the statute, and therefore a reviewing court must examine the regulations for alignment with Congressional intent.

EPA's regulation defines some "concentrated aquatic animal production facilities" as "point source[s]" depending upon the type of facility used to house the animals and the number of days of discharge. (138) However, the CWA does not explicitly list CAAPFs as a type of point source. (139) In the original rule that created the CAAPF category, EPA did not specify the source of its authority, as it did in its rules for CAFOs and irrigation return flow. (140) But after explicitly explaining the numbers of farm animals needed to be contained in order to create a CAFO, EPA noted that "fish operations are not easily categorized according to the number of fish contained within a particular operation." (141) Thus, the agency opted to create separate regulations for CAAPFs. (142) Even though CAFOs and CAAPFs were separated early on, the patterns of the regulations have closely paralleled each other. (143)

However, the way that CAFOs discharge pollutants into navigable waters is inevitably different from the way that CAAPFs discharge pollutants. CAFOs are, as the Second Circuit titled them, an "Exception to Nonpoint Source Provisions." (144) In other words, CAFOs are sources that should be "nonpoint sources," which are not required to obtain an NPDES permit. (145) If CAFOs were not included as a specific example under the CWA, litigation, and possible exemption, might surround every activity that resulted in the presence of manure and other wastes in navigable waters if it were questionable whether there had been a "discrete conveyance" within the meaning of the CWA. (146) Instead, the CAFO designation allows for many activities that occur on a qualifying farm, such as manure spreading and storing, to be considered part of the point source operations, and thus a "discharge of pollutants," as long as the rest of the five-element test is met. (147) By giving an example of "point source" that provides a broad meaning to "discrete conveyance," Congress has addressed a large source of pollution in the United States that might otherwise have been hard to target under the CWA. (148)

Although EPA's decision to not regulate some animal feeding operations based on their size seems contrary to the D.C. Circuit's decision in Costle, the D.C. Circuit said that EPA does have to the power to interpret terms. (149) EPA receives the statutory authority to define CAFOs directly from the CWA; they are specifically listed in the definition of "point source," whereas animal feeding operations (AFOs) are not listed. (150) A reasonable interpretation of the CWA would submit to permitting requirements only those AFOs that are "concentrated," and EPA would be able to define this term. This is especially true given the line that CAFOs walk between point source and nonpoint source and given the likelihood that only the pollution from concentrated AFOs would reach the level of "discernible, confined, and discrete conveyance[s]" under the CWA. (151)

Aquatic animal production facilities, on the other hand, do not necessarily struggle to meet the "point source" definition. Therefore they cannot be subject to the same type of concentrated/nonconcentrated distinction. Nearly every water facility that "contains, grows, or holds aquatic animals" (152) that inevitably create waste will likely fall under the statutory definition of "point source" as a "discernible, confined, and discrete conveyance ... from which pollutants are or may be discharged." (153) For these water facilities, pollutants made by the animals are automatically discharged directly and continuously into the water, unlike CAFO pollutants that have to be carried from land animals to water via some other mechanism. Thus, no matter what size the facility is and no matter how much food or other chemicals are added to the water, nearly all water facilities that contain animals will be point sources under the statutory definition. If EPA regulations indeed exclude from the CWA's definition of "point source" any facility that does not produce above a certain amount or does not feed its animals above a certain amount, they are beyond EPA's authority. (154)

2. Arbitrary and Capricious Challenge

Even if a court is unwilling to find that the term "point source" in the CWA clearly covers facilities like those at issue in APHETI or that the CAAPF regulations did not have statutory authority, the regulations are arbitrary and capricious under section 706(2)(A) of the APA. (155) According to the Supreme Court an agency must give "adequate reasons" for the promulgation of a rule in order for that rule not to be arbitrary and capricious. (156) In particular, the Supreme Court has held that "the agency must examine the relevant data and articulate a satisfactory explanation for its action." (157) Once a court finds that the agency has not provided adequate reasons, the court is likely to remand the rule back to the agency for further explanation. (158) When EPA adopted the CAAPF regulations, EPA did not give an adequate reason for the line it drew between CAAPFs and other aquatic production facilities.

In the 1973 regulations, EPA explicitly exempted certain facilities that would otherwise qualify as CAAPFs from point source status if they discharged for fewer than thirty days per year, if they were in a closed system, or if they produced less than twenty thousand pounds of animals. (159) However, in 1978, "decisions in the Federal courts ... required EPA to propose and promulgate regulations extending the NPDES permit program to include all point sources." (160) The decision that forced the change was the D.C. Circuit's Costle, which held that EPA did not have the power to exempt point sources from the permit requirements of the CWA. (161) In response to that decision, EPA proposed new regulations requiring general permits for facilities that were likely to be small polluters and stipulated the continued issuance of individual permits to larger polluters. (162) But when EPA promulgated the final rule, it removed the requirement of general permits for everything it called "aquatic animal production facilities" (AAPFs). (163)

In explaining the change from the proposed rule to the final rule, EPA only stated that "[m]any commentators objected to [the proposal]." (164) Then, in declaring that it would not promulgate a regulation that required general permits for small facilities or facilities that did not feed its animals, the agency referred to its similar decision not to require general permits for "animal feeding operations" (AFOs). (165) As in the proposed regulation for AAPFs, the agency had proposed to subject all AFOs to general permits. (166) Facilities that were concentrated (CAFOs), defined by the number of animals that were kept in the facility, would then be required to obtain individual permits. (167) However, in the final rule, EPA abandoned general permits for AFOs because EPA agreed with the commentators who argued that many small AFOs would not be point sources at all. (168)

EPA's original rationale for creating separate categories for CAAPFs and CAFOs reflects a difference in the logic that governs the regulation of water facilities from the logic that governs land facilities. For example, CAFOs discharge pollutants when manure and wastewater find their way into a water of the United States. (169) Therefore, it would be a reasonable assumption that small AFOs would not be likely to discharge pollutants absent a specific "discernible, confined and discrete conveyance." (170) Small amounts of animal waste might spread out and avoid any recognizable conveyance into "navigable waters." (171)

CAAPFs, on the other hand, cannot avoid discharging pollutants into the water, because the animals are always in the water and are always performing their biological processes. As a result, to argue that CAAPFs are not "point sources" is untenable because the animals' wastes will inevitably end up in the water. Therefore, although EPA may not feel it is necessary to require permits for those "point sources" that are causing small amounts of pollution, Costle and the language of the CWA require that EPA regulate all AAPFs that are "point sources." (172) Therefore, even if APHETI becomes established case law for its interpretation of the CAAPF regulation, the regulation can still be challenged as arbitrary and capricious because it does not adequately explain its rejection of the proposed general permits.

V. CONCLUSION

The case of Taylor's mussel facilities seems on its face to be an easy decision. Taylor was a sympathetic defendant because it actually tried to get a NPDES permit but was spurned by the Washington Department of Ecology. (173) In addition, Taylor's products, mussels, filter other pollutants from the water. (174) Therefore, it seems counterintuitive to punish an operation that seems so innocuous.

However, the CWA's broad language and ambitious purpose target the aggregate of water pollution. (175) And, even mussels can cause environmental and ecological damage to the water. For example, there have been cases where even a small number of mussel farms in one area has led to the mussels overconsuming nutrients and outcompeting other organisms. (176) Even if the effect to the water is de minimis, the CWA does not separate significant pollution from nonsignificant discharges as bases for regulation.

Coverage by the CWA is not to say that EPA does not have flexibility in its regulation. As the D.C. Circuit in Costle explained in the face of an infeasibility argument, EPA has a range of regulatory options available. (177) A simple general permit at least prevents "the problem [from] drop[ping] out of sight, into a pool of inertia, unlikely to be recalled in the absence of crisis of a strong political protagonist." (178)

Therefore, while APHETI creates difficult case law in the Ninth Circuit, other circuits can apply a more faithful reading of the CWA to facilities like Taylor's. And if sympathetic defendants come before a court, then it can opt to tailor its remedies to the parties before it. (179) Meanwhile in the Ninth Circuit, unhappy plaintiffs can turn their attention to addressing the deficiencies of the CAAPF regulation under the APA. (180)

(1) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (2000).

(2) Id. [section] 1251(a).

(3) Id. [section] 1311(a).

(4) E.g., Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982).

(5) 299 F.3d 1007 (9th Cir. 2002).

(6) Id. at 1009.

(7) See id at 1018 n.10 (stating that the court did not need to address the "discharge" element).

(8) Id. at 1017-19.

(9) Id. at 1019.

(10) Id. at 1009.

(11) Id.

(12) Id. at 1010.

(13) Id.

(14) Id.

(15) Id.

(16) Id.

(17) Id. at 1011.

(18) Id. at 1015-19. The Ninth Circuit first addressed the threshold question of whether the Washington Department of Ecology, which had refused Taylor's application for a NPDES permit because Taylor did not add food to the water, was a necessary party, concluding it was not. Id. at 1011-15. The CWA allows a state to administer its NPDES program, in place of EPA. 33 U.S.C. [section] 1342(c) (2000); APHETI, 299 F.3d. at 1009-10.

(19) APHETI, 299 F.3d at 1019.

(20) Id.

(21) Id. at 1015.

(22) 33 U.S.C. [section] 1362(6) (2000).

(23) APHETI, 299 F.3d at 1016.

(24) Id.; Hughey v. United States, 495 U.S. 411, 418-419 (1990).

(25) 33 U.S.C. [section] 1362(6) ("The term 'pollutant' means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.")

(26) APHETI, 299 F.3d at 1016.

(27) Id. (citing 33 U.S.C. [section] 1251(a)(2) (2000), which states that "it is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife ... be achieved ...").

(28) Id.

(29) Id.

(30) E.g., id. at 1017 (citing with approval Ass'n of Pac. Fisheries v. EPA, 615 F.2d 794, 802 (9th Cir. 1980), for the rule that processing plants that remove fish from water and then return unusable body parts to the water add pollutants).

(31) Id.

(32) Id.

(33 Id. at 1017-18.

(34) 33 U.S.C. [section] 1311(a) (2000).

(35) APHETI, 299 F.3d at 1010.

(36) Id.

(37) Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 175 (D.C. Cir. 1982) (holding that water quality changes caused by dams did not meet this definition). According to the Ninth Circuit, the "addition" element is much broader. For example in Rybachek v. United States Environmental Protection Agency, the court found an "addition" when sediment was lifted from a streambed and then released downstream during a gold mining operation. 904 F.2d 1276, 1285-86 (9th Cir. 1990). Subsequently, the court held in Borden Ranch Partnership v. United States Army Corps of Engineers (Borden Ranch), that the definition of "addition" included a process called deep ripping, which loosens the bottom layer of a wetland in order to drain the water and make the land suitable for agriculture. 261 F.3d 810 (9th Cir. 2001), aff'd by equally divided court, 537 U.S. 99 (2002). Therefore, when APHETI was decided, the law considered an "addition" to occur even without an addition of material, "at least when an activity transforms some material from a nonpollutant into a pollutant." Id. at 814 (citing United States v. Deaton, 209 F.3d 331, 335-36 (4th Cir. 2000) (emphasis added)).

(38) 693 F.2d 156, 175 (D.C. Cir. 1982).

(39) APHETI, 299 F.3d at 1010.

(40) Id.

(41) See id. at 1018 ("We need not consider whether the release of such materials from the rafts is a 'discharge' under the Act.").

(42) Id. at 1010.

(43) Id. at 1017.

(44) 615 F.2d 794, 802 (9th Cir. 1980).

(45) APHETI, 299 F.3d at 1017.

(46) Id.

(47) Id.

(48) See id. at 1010 (describing the process for introducing the mussels to the water).

(49) "Industry" is defined as "systematic labor esp. for the creation of value." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 1155 (3d ed. 1986).

(50) 33 U.S.C. [section] 1362(19) (2000).

(51) APHETI, 299 F.3d at 1017.

(52) Id. at 1010.

(53) 33 U.S.C. [section] 1362(19) (2000).

(54) Malcolm C. M. Beveridge et al., Aquaculture & Biodiversity, 23 AMBIO 497, 499 (1994).

(55) 33 U.S.C. [section] 1362(19) (2000).

(56) APHETI, 299 F.3d at 1017.

(57) Id. at 1017.

(58) See id. at 1010 (finding that the mussels were brought to Puget Sound in the 1970s, but may have naturally migrated there without the help of human interference). If the court had not accepted that the mussels were natural and had instead focused on the fact that they had been introduced, then the court's argument that the processes of the mussel are natural would not have been feasible. See Andrew N. Cohen & Brent Foster, The Regulation of Biological Pollution: Preventing Exotic Species Invasions from Ballast Water Discharged into California Coastal Waters, 30 GOLDEN GATE U. L. REV. 787, 793-99, 836-41 (2000) (discussing the introduction of nonindigenous species through ballast water discharges under the CWA and the danger associated with their introduction); Brant Foster, Pollutants Without Half-Lives: The Role of Federal Environmental Laws in Controlling Ballast Water Discharges of Exotic Species, 30 ENVTL. L. 99, 104-18 (2000) (discussing the problems associated with nonindigenous species and possible coverage by the CWA).

(59) APHETI, 299 F.3d at 1016.

(60) Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1311(a), 1362(6) (2000) (emphasis added).

(61) Weinberger v. Romero-Barcelo, 456 U.S. 305, 323 (1990).

(62) Id. at 308.

(63) Id. at 310 (quoting Barcelo v. Brown, 478 F. Supp. 646, 682 (D.P.R. 1979)).

(64) Id. at 310 n.4 (quoting Barcelo v. Brown, 478 F. Supp. 646, 682 (D.P.R. 1979)).

(65) 33 U.S.C. [section] 1362(6) (2000).

(66) Weinberger, 456 U.S. at 307-08.

(67) Id. at 307-11.

(68) Id. at 309.

(69) 33 U.S.C. [section] 1362(6) (2000).

(70) Id. [section] 1311(a).

(71) Beveridge et al., supra note 54, at 499.

(72) In fact, the CWA is clear in saying that "the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. [section] 1311(a) (2000). And, while "discharge of a pollutant" is a defined term and only includes actions that meet the five-element test, the amount of "pollutant" is not a factor in that test.

(73) See Natural Res. Def. Council, Inc. v. Costle (Costle), 568 F.2d 1369, 1379-82 (D.C. Cir. 1976) (discussing the various ways that EPA can regulate facilities that fall under the CWA's NPDES permit requirements).

(74) See Beveridge et al., supra note 54, at 499. In the bay of Ria de Arosa, Spain, "where 10% of the surface area of the bay is covered by mussel ... farms," the mussels' overconsumption of nutrients has led to the mussels outcompeting other organisnm and has changed the biology of the water. Id.

(75) See Costle at 1382 ("An exemption tends to become indefinite: the problem drops out of sight, into a pool of inertia, unlikely to be recalled in the absence of crisis or a strong political protagonist.").

(76) Ronald J. Rychlak & Ellen M. Peel, Swimming Past the Hook: Navigating Legal Obstacles in the Aquaculture Industry, 23 ENVTL. L. 837, 838, 842 (1993) (discussing the need for aquaculture and predicting a boom in production).

(77) See, e.g., Beveridge et al., supra note 54, at 499 (discussing results of long-term mussel farming); DAVID SUZUKI FOUNDATION, SALMON AQUACULTURE, available at http://www.davidsuzuki.org/files/aquabrochure.pdf (last visited July 20, 2003) (discussing negative effects of salmon farming).

(78) 33 U.S.C. [section] 1251(a) (2000).

(79) See APHETI, 299 F.3d 1007, 1016 (9th Cir. 2002) (using this language to emphasize the impossibility that Congress would want to maintain water quality for the propagation of shellfish while at the same time requiring shellfish breeding operations to obtain a permit).

(80) Id. at 1017.

(81) Id. at 1016.

(82) Weinberger v. Romero-Barcelo, 456 U.S. 305, 307-13 (1990).

(83) Id.

(84) 261 F.3d 810 (9th Cir. 2001), aff'd by an equally divided court 537 U.S. 99, 123 S. Ct. 599 (2002).

(85) Id. at 814-15.

(86) Id. In addition, the court included "dredged spoil," "rock," "sand," and "cellar dirt" in its list of possible pollutants. Id. (quoting 33 U.S.C. [section] 1362(6) (2000)).

(87) APHETI, 299 F.3d. 1007, 1018-19 (9th Cir. 2002).

(88) Id. at 1018; 33 U.S.C. [section] 1362(14) (2000).

(89) APHETI, 299 F.3d at 1018-19.

(90) Id.; 40 C.F.R. [section] 122.24(a) (2002).

(91) 40 C.F.R. pt. 122 App. C(a) (2002).

(92) 40 C.F.R. pt. 122 App. C(1)-(2)(a) (2002). The regulations also provide that a State Director or Regional Administrator "may designate any warm or cold water aquatic animal production facility as a [CAAPF] upon determining that it is a significant contributor of pollution to waters of the United States." 40 C.F.R. [section] 122.24(c) (2002) (emphasis added). As this determination is discretionary and based on a finding of significant pollution, it does not affect the analysis of this paper.

(93) APHETI, 299 F.3d at 1018; 40 C.F.R. pt. 122 App. C(a) (2002).

(94) APHETI, 299 F.3d at 1019.

(95) Id. at 1018 (quoting Rainsong Co. v. Federal Energy Regulatory Commission, 151 F.3d 1231, 1234 (9th Cir. 1998), for the proposition that "'in the construction of administrative regulations ... it is presumed that every phrase serves a legitimate purpose and, therefore, constructions which render regulatory provisions superfluous are to be avoided'").

(96) 568 F.2d 1369 (D.C. Cir. 1977).

(97) APHETI, 299 F.3d at 1019.

(98) Id.

(99) Id.

(100) Id. at 1009-10 (citing 33 U.S.C. [section] 1342(c)(1)).

(101) Id. at 1011. When a member of APHETI wrote the Department of Ecology to inquire why mussel facilities did not require NPDES permits, the Director explained that "shellfish farmers do not need to add fish food (nutrients) to the water to promote shellfish growth." Id.

(102) Costle, 568 F.2d 1369, 1372, 1383 n.5 (D.C. Cir. 1977).

(103) League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Forsgren (League of Wilderness), 309 F.3d 1181, 1190 (9th Cir. 2002). See also, Natural Res. Def. Council, Inc. v. United States Envtl. Prot. Agency, 966 F.2d 1292, 1306 (9th Cir. 1992) (citing Costle for the proposition that "once Congress has delineated an area that requires permits, EPA is not free to create exemptions"); Am. Mining Cong. v. United States Envtl. Prot. Agency, 965 F.2d 759, 772 (9th Cir. 1992) (citing Costle for the proposition that EPA must regulate "all discharges of pollutants").

(104) APHETI, 299 F.3d at 1019.

(105) Costle, 568 F.2d at 1371-72.

(106) Id. at 1372-73; Form and Guidelines Regarding Agricultural and Silvicultural Activities, 38 Fed. Reg. 18,000, 18,001 (July 5, 1973) (codified at 48 C.F.R. pt. 122).

(107) 33 U.S.C. [section] 1362(14) (2000).

(108) Costle, 568 F.2d at 1377-79.

(109) Id. at 1377, 1379.

(110) Id. at 1377.

(111) Id.

(112) 309 F.3d 1181 (9th Cir. 2002).

(113) Id. at 1182.

(114) Id. at 1185.

(115) Id. at 1190.

(116) Id. (emphasis in original).

(117) Id. at 1185, 1190.

(118) APHETI, 299 F.3d 1007, 1019 (9th Cir. 2002).

(119) Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1977).

(120) League of Wilderness, 309 F.3d at 1190.

(121) 40 C.F.R. [section] 122.24, pt. 122 App. C (2002); APHETI, 299 F.3d at 1018.

(122) See 33 U.S.C. [section] 1342 (2000) (describing the individual NPDES permit process).

(123) See, e.g., Borden Ranch, 261 F.3d 810, 815 (9th Cir. 2001), aff'd by an equally divided court, 537 U.S. 99 (2002).

(124) 33 U.S.C. [section] 1362(14) (2000).

(125) See infra Part IV.D.1.

(126) 33 U.S.C. [section] 1362(14) (2000).

(127) League of Wilderness, 309 F.3d 1181, 1185 (9th Cir. 2002).

(128) Id.

(129) APHETI, 299 F.3d 1007, 1010 (9th Cir. 2002).

(130) See N. Plains Res. Council v. Fidelity Exploration & Dev. Co., 325 F.3d 1155 (9th Cir. 2003) (affirming and explaining APHETI less than a year after the decision).

(131) 5 U.S.C. [subsection] 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (2000).

(132) Id [section] 706(2)(C).

(133) Id. [section] 706(2)(A).

(134) 467 U.S. 837 (1984).

(135) Id. at 843.

(136) Id.

(137) Id.

(138) 40 C.F.R. [section] 122.24, pt. 122 App. C (2002). CAAPF regulations have always been defined at least by the type of facility and the number of days of discharge. See, e.g., Form and Guidelines Regarding Agricultural and Silvicultural Activities, 38 Fed. Reg. 18,000, 18,000-01 (July 5, 1973) (codified at 48 C.F.R. pt. 122) (excluding facilities that discharge for less than 30 days and separating facilities into closed ponds and raceways).

(139) 33 U.S.C. [section] 1362(14) (2000).

(140) 38 Fed. Reg. at 18,000-01.

(141) Id.

(142) Id. Although it is easily inferred that CAAPFs are a subset of CAFOs and EPA has treated them as such, the original regulations also compared some CAAPFs to "industr[ies] which take[] in water for processing and subsequently discharge[] the water laden with wastes." Id.

(143) See National Pollutant Discharge Elimination System; Revision of Existing Regulations, 44 Fed. Reg. 32,854, 32,870 (June 7, 1979) (to be codified at 48 C.F.R pt. 122) (referring to the decision for CAFOs in order to explain the decision to exempt small aquatic facilities from general permits).

(144) Concerned Area Residents for the Env't v. Southview Farm, 34 F.3d 114, 121 (2d Cir. 1994). In that case, the court was concerned with whether a dairy had violated the CWA by spreading liquid manure on its fields without a NPDES permit. Id. at 115. The court held that, despite exceptions for "agricultural stormwater discharges," the farm had violated the CWA, because it was clearly a CAFO and discharges caused by normal rain were covered under the Act. Id. at 123.

(145) See Gregory W. Blount et. al., The New Nonpoint Source Battleground: Concentrated Animal Feeding Operations, 5 ALB. L. ENVTL. OUTLOOK 27, 28 (2000) ("CAFOs would seem to be nonpoint sources because water runs over land or through the ground, picks up pollutants, and deposits them in surface waters or introduces them into groundwater.").

(146) See Southview Farm, 34 F.3d at 118-19 (responding to defendant's argument that there was no point source discharge because liquid manure "quite naturally flowed to and through the lowest areas of the fields, and that the pollutants reached the stream that flows into the Genesee 'in too diffuse a manner to create a point source discharge'").

(147) Id.

(148) See Terence J. Centner, Concentrated Feeding Operations: An Examination of Current Regulations and Suggestions for Limiting Negative Externalities, 25 COLUM. J. ENVTL. L. 219, 223-24 (2000) (overviewing pollution problems caused by agricultural wastes).

(149) Costle, 568 F.2d 1369, 1380 (D.C. Cir. 1976).

(150) 33 U.S.C. [section] 1362(14) (2000).

(151) Id.

(152) 40 C.F.R. pt. 122. App. C. (2002).

(153) 33 U.S.C. [section] 1362(14) (2002). See supra Part III.A.3 (discussing "pollutant" element).

(154) See Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1976) (finding that EPA "does not have authority to exempt categories of point sources from the permit requirements").

(155) 5 U.S.C. [section] 706(2)(A) (2000). "The reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id.

(156) Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983). The Supreme Court in Motor Vehicle Manufacturers Ass'n. was evaluating the revocations, as opposed to the promulgation, of a rule, but the court stated that there was nothing in the APA that suggested that revocations would have a different standard. Id. at 41.

(157) Id. at 43.

   Normally, an agency rule would be arbitrary and capricious if the
   agency has relied on factors which Congress has not intended it to
   consider, entirely failed for its decision that runs counter to the
   evidence, or is so implausible that it could not be ascribed to a
   difference in view or the product of agency expertise.

Id.

(158) See id. at 57 (remanding to the National Highway Traffic Safety Administration for further explanation); Sec. and Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 95 (1943) (remanding to the Securities and Exchange Commission).

(159) Form and Guidelines Regarding Agricultural and Silvicultural Activities, 38 Fed. Reg. 18,000, 18,001 (July 5, 1973) (codified at 48 C.F.R. pt. 122) (these are part of the regulations that were at issue in Costle).

(160) National Pollutant Discharge Elimination System; Revision of Existing Regulations, 43 Feg. Reg. 37,078, 37,082 (proposed Aug. 21, 1978) (codified at 48 C.F.R. pt. 122).

(161) Costle, 568 F.2d 1369, 1377 (D.C. Cir. 1976). See Effluent Limitations Guidelines and New Source Performance Standards for the Concentrated Aquatic Animal Production Point Source Category, 67 Fed. Reg. 57,872, 57,875 (proposed Sept. 12, 2002) (to be codified at 40 C.F.R. pt. 451) (examining the history of rulemaking concerning CAAPFs before promulgating effluent guidelines).

(162) 43 Fed. Reg. at 37,082.

(163) National Pollutant Discharge Elimination System; Revision of Existing Regulations, 44 Fed. Reg. 32,854, 32,870 (June 7, 1979) (codified at 48 C.F.R. pt. 122).

(164) Id.

(165) Id.

(166) 43 Fed. Reg. at 37,082.

(167) Id.

(168) 44 Fed. Reg. at 32,870.

(169) Cmty. Ass'n. for Restoration of the Env't v. Henry Bosma Dairy, 305 F.3d 943, 955 (9th Cir. 2002).

(170) 33 U.S.C. [section] 1362(14) (2000).

(171) Id. [section] 1362(12).

(172) See Costle, 568 F.2d 1369, 1383 (D.C. Cir. 1976) ("We find a plain Congressional intent to require permits in any situation of pollution from point sources.").

(173) APHETI, 299 F.3d 1007, 1011 (9th Cir. 2002).

(174) Id. at 1010.

(175) See, e.g., 33 U.S.C. [section] 1251(a)(1) (2000) ("The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of Nation's waters. In order to achieve this objective it is hereby declared that ... it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985."); Id. [section] 1311(a) ("[T]he discharge of any pollutant by any person shall he unlawful.").

(176) Beveridge et al., supra note 54, at 499.

(177) Costle, 568 F.2d 1369, 1377-83 (D.C. Cir. 1976).

(178) Id. at 1382.

(179) See, e.g, 33 U.S.C. [section] 1319(d) (describing the factors that courts shall consider in assigning civil penalties as "the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require").

(180) See supra Part IV.D.

[c] Corinna Spencer-Scheurich, 2003. Managing Editor, Environmental Law, 2003-2004; Ninth Circuit Review Member, Environmental Law, 2002-2003. J.D. expected May 2004, Lewis & Clark Law School; B.A. Colorado College, 2000. The author thanks Professor William F. Funk for his guidance. The author also thanks Bronwen Wright, 2002-03 Ninth Circuit Review Editor, Environmental Law, for her comments.