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FOR IMMEDIATE RELEASE

Lawsuit Over Unpermitted Discharges At National Fish Hatchery Settled

A lawsuit filed by Wild Fish Conservancy saying that the Quilcene National Fish Hatchery lacked a federal wastewater discharge was settled last month when the US Environmental Protection Agency (EPA) agreed to issue a permit and reimburse the group's court costs.
Aug 05, 2010

WILD FISH CONSERVANCY

PO Box 402 Duvall, WA 98019 • Tel 425-788-1167 • Fax 425-788-9634 • info@wildfishconservancy.org

Contact: Kurt Beardslee, Wild Fish Conservancy, 425-788-1167; Brian Knutsen, Smith and Lowney, LLP, 206-860-1394

For Immediate Release: August 5, 2010

Lawsuit Over Unpermitted Discharges At National Fish Hatchery Settled

On July 12, 2010, Wild Fish Conservancy (WFC) and the federal government settled a lawsuit filed by Wild Fish Conservancy against the Quilcene National Fish Hatchery on the failure of that facility to have a Clean Water Act wastewater discharge permit (National Pollutant Discharge Elimination System, or NPDES permit).  The terms of the settlement include the issuance of a NPDES permit by the US Environmental Protection Agency (EPA) to the facility and payment of attorney fees incurred by WFC.  The Quilcene facility is operated by the US Fish and Wildlife Service (FWS) in Jefferson County.

WFC filed the suit in 2008, alleging that a NPDES permit was required under the Clean Water Act because the facility discharged pollutants (nutrients, solids, disinfectants, etc.) into the Big Quilcene River from a “point source” (pipes and the hatchery’s fish ladder).  The suit was filed after WFC received a negative response to its required “60-day notice” (before filing suit under the CWA, a letter to the responsible party alleging the violations must be filed 60 days prior, in an attempt to get corrections without litigation).

Surprisingly, the federal government’s response to the 60-day notice was that the facility did not need a permit because an EPA regulation exempted it.  The “concentrated aquatic animal production facility” (CAAP) regulation provides that facilities that produce a significant number of fish that consume a significant amount of food are automatically included in the NPDES program. The federal government, however, contended that the inverse is true, that facilities smaller than the CAAP regulation thresholds do not need an NPDES permit.  The problem with that approach, however, is the Clean Water Act is very clear on what facilities need NPDES permits:  those that discharge “pollutants” into “navigable waters” from “point sources.”  The Quilcene facility does that.

“Fish hatcheries, like any other facility or factory, must comply with all the appropriate laws,” said Kurt Beardslee, WFC’s Executive Director.  “In this case, it was clear to us that this facility needed a permit.  We are glad that the federal government finally agreed with us.”

In the settlement, the federal government also said it was re-examining the CAAP regulation and may issue guidance or new regulations to clarify its use.  “From a reading of the regulatory history it’s clear that the CAAP regulation was never meant to exempt any facility from the NPDES program,” said attorney Brian Knutsen of Smith and Lowney, LLP, of Seattle and WFC’s attorney on the case.  “Instead, it was intended to bring into the program large facilities that may otherwise not be permitted because they do not discharge from traditional ‘point sources,’ such as pipes.  Facilities such as the Quilcene hatchery that discharge pollutants from pipes, on the other hand, require a NPDES permit under the plain language of the Clean Water Act, and EPA does not have authority to exempt them through a regulation.”

The federal government prevailed at the District Court level (Western District of Washington), and WFC appealed to the 9th Circuit.  After WFC filed its opening brief on appeal but before the federal defendants responded, however, the case settled.  Beardslee considers this a victory for wild fish now that the facility’s discharges will be regulated through the NPDES system.  “Besides getting a permit, the Quilcene hatchery has made recent improvements to again allow wild fish passage.  The attention that we gave the facility has paid off.”

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