Fairhurst v. Hagener, 04-35366.

• Decision Date: 08 September 2005
• Docket Number: No. 04-35366.,04-35366.
• Citation: 422 F.3d 1146
• Parties: William FAIRHURST, Plaintiff-Appellant, v. Jeff HAGENER, Director, Montana Department of Fish, Wildlife & Parks, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

422 F.3d 1146

William FAIRHURST, Plaintiff-Appellant, v. Jeff HAGENER, Director, Montana Department of Fish, Wildlife & Parks, Defendant-Appellee.

No. 04-35366.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 3, 2005.

Filed September 8, 2005.

Alan L. Joscelyn, Gough, Shanahan, Johnson & Waterman, Helena, MT, for the appellant.

Rebecca J. Dockter, Montana Department of Fish, Wildlife & Parks, Helena, MT, for the appellee.

Appeal from the United States District Court for the District of Montana; Sam E. Haddon, District Judge, Presiding. D.C. No. CV-03-00067-SEH.

Before: THOMPSON, T.G. NELSON, and WARDLAW, Circuit Judges.

PER CURIAM:

William Fairhurst appeals the district court's grant of summary judgment in favor of Jeff Hagener, director of the Montana Department of Fish, Wildlife and Parks ("Department"). We hold that a pesticide applied to a river pursuant to an intentional scheme aimed at eliminating pestilent fish species is not a "pollutant" for the purposes of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, and thus not subject to the Act's permit requirements. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the district court.

I. BACKGROUND

Hagener initiated a ten year program known as the Cherry Creek Native Fish Introduction Project ("Cherry Creek Project"), in which the Department sought to re-introduce a threatened fish species called the westslope cutthroat trout. Because this species was threatened in part by competition with other non-native trout species, Hagener's program included a plan to remove the non-native fish. The Department would apply the pesticide antimycin into the water for short periods of time over the course of several years and afterwards reintroduce the westslope cutthroat. As the Department began executing the project, it performed at least one application of antimycin to Cherry Creek.

Fairhurst sued Hagener under the citizen suit provision of the CWA. Fairhurst claimed that in order to legally disperse pesticide into United States waters, Hagener was required by the CWA to obtain a National Pollutant Discharge Elimination System ("NPDES") permit, which Hagener had not secured before applying the antimycin. The parties stipulated that the Department applied the antimycin in accordance with the requirements of the label approved by the Environmental Protection Agency ("EPA") pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), 7 U.S.C. §§ 136-136(y). The parties further stipulated that the Cherry Creek Project "went according to the plan which included application of Antimycin directly to the waters of the U.S. . . . Consequently, the species killed were rainbow and Yellowstone cutthroat trout." Fairhurst sued for an injunction proscribing all future unpermitted applications of the antimycin.

Fairhurst and Hagener each moved for summary judgment. The district court granted Hagener's motion and denied Fairhurst's on March 24, 2004. Fairhurst timely appeals here.

II. STATUTORY FRAMEWORK

The Clean Water Act requires that a government agency obtain a NPDES permit before discharging any pollutant from any point source into navigable waters of the United States. 33 U.S.C. § 1323(a). The NPDES permit system "allows a polluter who obtains a permit to discharge a specified amount of the pollutant." Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 530 (9th Cir.2001) (citing 33 U.S.C. § 1342). "Absent the required permit, such discharge is unlawful." League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1183 (9th Cir.2002). The NPDES program allows the EPA to "issue permits on a case-by-case basis, taking into account local environmental conditions." Headwaters, 243 F.3d at 530 (citing Am. Mining Cong. v. United States Envtl. Prot. Agency, 965 F.2d 759, 762 n. 3 (9th Cir.1992)). Further, Congress has given "the Governor of each State desiring to administer its own permit program" permission to do so, provided that the EPA Administrator approves the Governor's program. 33 U.S.C. § 1342(b). When the state permit program is in force, the federal permit program is suspended. See 33 U.S.C. § 1342(c).

The CWA defines the term "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source other than a vessel or other floating craft." 33 U.S.C. § 1362(12). "Pollutant," in turn, 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.

33 U.S.C. § 1362(6).

III. DISCUSSION

The parties have stipulated that "Cherry Lake and Cherry Creek and its tributaries are all navigable waters or waters of the United States for purposes [of] the . . . Clean Water Act." Moreover, the parties do not dispute that the discharge of antimycin was an "addition" from a "point source." Nor do they dispute that Hagener did not seek or obtain a NPDES permit from the Federal or State NPDES program. The crux of the parties' disagreement is whether the antimycin as applied to Cherry Creek should be characterized as "chemical waste," and thus whether it falls under the CWA's definition of "pollutant" in 33 U.S.C. § 1362(6), rendering its unpermitted application illegal under the Act. Hagener also argues that if the antimycin is a "pollutant," its use in accordance with its FIFRA label eliminates the requirement that he also obtain a NPDES permit.

A. "Chemical Waste"

We consider whether a pesticide applied directly and intentionally to United States waters for the purpose of eliminating pests is a "chemical waste" for the purposes of 33 U.S.C. § 1362(6), when such application is carried out in accordance with an EPA-approved FIFRA label, and when the pesticide performs as intended. We review issues of statutory interpretation de novo. Res. Invs., Inc. v. U.S. Army Corps of Eng'rs, 151 F.3d 1162, 1165 (9th Cir.1998).

In Headwaters, 243 F.3d at 526, we were presented with a similar question. In that case we considered whether the herbicide Magnacide H, applied to irrigation canals "for a beneficial purpose, the clearing of weeds," was a "chemical waste" for the purposes of 33 U.S.C. § 1362(6). Id. at 532. We noted that acrolein, the active ingredient in Magnacide H, is "a toxic chemical that is lethal to fish . . . which takes at least several days to break down into a nontoxic state." Id. We also noted in passing that "it would seem absurd to conclude that a toxic chemical directly poured into water is not a pollutant," id. at 532-33, although we declined to decide the question whether the intentionally applied and properly functioning portions of acrolein were "chemical wastes." Answering this question was unnecessary because "the residual acrolein left in the water after its application qualifies as a chemical waste product and thus as a `pollutant' under the CWA." Id. at 533 (emphasis added). We therefore found that the CWA required an entity desiring to dispense a chemical that leaves residue into the waters to obtain a NPDES permit for discharge, even when the chemical bears a FIFRA label.

Unlike Headwaters, this case squarely presents the issue whether pesticide intentionally applied directly into the water in accordance with all applicable requirements of FIFRA should be characterized as "chemical waste." Here the parties do not assert that there was residual chemical left in the water after the antimycin had performed its intended purpose. On the contrary, as the district court noted, "it is unchallenged that following application, the antimycin dissipated rapidly" and left no residue. Fairhurst again conceded as much at oral argument.

Because the factual scenario presented here differs from Headwaters', and there is no other controlling circuit law on the meaning of the term "chemical waste," we next look to the plain meaning of the statutory term. In Northern Plains Resource Council v. Fidelity Exploration & Development Co., 325 F.3d 1155 (9th Cir.2003), we defined "waste" as "any useless or worthless byproduct of a process or the like; refuse or excess material." Id. at 1161 (citing Am. Heritage Dictionary 672 (1979)). Merriam-Webster's definition is in the same vein: "damaged, defective, or superfluous material produced by a manufacturing process." See Merriam-Webster online, www.merriam-webster.com. Because the parties stipulated that the antimycin was applied and functioned as intended, it was not "damaged" or "defective." Moreover, the parties do not claim that any portion of the pesticide applied to the water was "superfluous material" or "refuse or excess material." A plain meaning analysis of the phrase "chemical waste" thus suggests that a pesticide that is intentionally applied to the water and leaves no excess portions after performing its intended purpose is not a "chemical waste."

This analysis accords with the EPA's construction of the CWA's definition of "chemical waste" in the context of intentionally applied pesticides. In July, 2003 the EPA issued a memorandum entitled "Interim Statement and Guidance on Application of Pesticides to Waters of the United States in Compliance with FIFRA" ("Interim Statement") to address this issue. Available at http://www.epa.gov/npdes/pubs/pesticide_interim_guidance.pdf.¹ The Interim Statement asserts that the "EPA has evaluated whether pesticides applied consistent with FIFRA fall within any of the terms in section 506(2) [defining the term `pollutant'], in particular whether they are `chemical wastes' or `biological materials.' EPA has concluded that they do not fall within either term." Id.

The EPA's Interim Statement is entitled to some deference. In Resource Investments, Inc., 151 F.3d at 1165, this court held that "an agency's construction of a statute it is charged with...