Fourth Circuit Analyzes EPA Regulatory Authority under Clean Water Act

August 25, 2023 | Kitt Tovar Jensen

A commercial fishing business harvested shrimp by dragging nets along the ocean floor. The nets would trap other marine animals in addition to the shrimp. The fishermen would throw this “bycatch” back into the ocean. A conservation group brought a citizen-suit under the Clean Water Act (CWA) claiming that the company violated the CWA by 1) disturbing the sediment when it dragged nets along the ocean floor and 2) throwing the bycatch back into state waters bordering the Atlantic Ocean. The district court granted the fishing company’s motion to dismiss. On appeal to the Fourth Circuit Court of Appeals, the court affirmed.

Definition of Pollutant under the Clean Water Act

The CWA prohibits the discharge of a pollutant into navigable waters without a permit. 33 U.S.C. §§ 1311. A pollutant includes, among other things, “biological materials,” “dredged spoil,” “rock,” and “sand.” 33 U.S.C. § 1362(6). Discharging a pollutant means “any addition of any pollutant to navigable waters….” 33 U.S.C. § 1362(12). The plaintiff argued that returning the bycatch was a discharge of a pollutant and, therefore, the fishing company violated the CWA because it had not obtained a permit.

Interpreting EPA Authority of Bycatch under the Major Questions Doctrine

The Fourth Circuit first determined whether the fishing company violated the CWA by returning bycatch to the lagoon without a permit. The court noted that, at first glance, bycatch would appear to fall within the ordinary meaning of biological materials. However, under the recently formalized major questions doctrine, courts must determine whether Congress clearly gave an agency authorization to undertake an action that will have significant political and economic consequences. See West Virginia v. EPA, 142 S. Ct. 2587 (2022); Biden v. Nebraska, 143 S. Ct. 2355 (2023). Here, the major questions doctrine applied because of the fishing industry’s large economic impact.

The existence of a distinct regulatory scheme to address the issue may indicate that Congress did not provide clear authority for the agency to undertake the proposed action. In this matter, such regulations already existed. States have jurisdiction over the management of fisheries and bycatch in state waters and the National Marine Fisheries Service has jurisdiction over federal waters. 16 U.S.C. §§ 1851(a)(9), 33 U.S.C. § 1251(b). Unlike other cases involving a major question, the EPA does not wish to invoke its power to regulate bycatch. Instead, the plaintiff is seeking to compel EPA action through the citizen-suit.

Because the major question doctrine applied, the plaintiff had to show clear congressional authorization for the EPA to regulate bycatch under § 1311. Vague or broad definitions in the CWA do not provide an agency with the comprehensive authority to regulate that term. Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 172-73 (2001). The plaintiff failed to meet this burden as it only offered the CWA definition of “biological materials” and “discharge” in support of its argument. Thus, the Fourth Circuit held that § 1311 did not give the EPA the clear congressional authority to regulate the return of bycatch to state waters. 

Sediment as an “Addition of a Pollutant”

The court next considered whether the disturbed sediment from the nets amounted to discharge of a pollutant without a permit. The plaintiff argued that the disturbed sediment qualified as either 1) dredged spoil or 2) rocks and sand. The court rejected both arguments.

First, the court determined that the disturbed sediment was not dredged spoil because it was not dredged. The verb dredge means “[t]o clear out with a dredge; remove sand, silt, mud, etc., from the bottom of.” See Dredge, American College Dictionary (1970). Accordingly, dredged spoil is not temporarily disturbed sediment, but the result of an excavation or land-altering activity.

The court also rejected the plaintiff’s second argument. Although the sediment did consist of rocks and sand, this was not a discharge. The sediment was already in the water. Moving it around is not an “addition.” Therefore, the Fourth Circuit affirmed the motion to dismiss in favor of the fishing company.

North Carolina Coastal Fisheries Reform Group v. Capt. Gaston, LLC, 2023 WL 5009246 (4th Cir. 2023).