ELR Citation: ELR 20183
No(s). s. 03-74795 et al (9th Cir. Jul 23, 2008)

The Ninth Circuit upheld a lower court decision vacating a U.S. Environmental Protection Agency (EPA) regulation exempting ballast water and certain other marine discharges from the permitting scheme of Clean Water Act (CWA) §§301(a) and 402. The regulation, 40 C.F.R. §122.3(a), exempts the discharge of effluent from properly functioning marine engines; the discharge of laundry, shower, and galley sink wastes; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water. The court ruled that EPA exceeded its authority under the CWA in exempting these discharges from permitting requirements. The Agency's denial of plaintiffs' 1999 petition requesting a repeal of the regulation was therefore not in accordance with law. In enacting the CWA, Congress expressed "a plain . . . intent to require permits in any situation of pollution from point sources," and Congress never acquiesced in the agency's subsequent interpretation of the Act. In addition, the lower court properly exercised its discretion in vacating the regulation and ordering EPA to issue a new rule by September 30, 2008.

[Prior decisions in this litigation can be found at 35 ELR 20075 and 36 ELR 20194.]