Federal Appeals Court upholds ruling for shrimp trawlers in Clean Water Act dispute | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The 4th US Circuit Court of Appeals has affirmed a lower court decision favoring shrimp trawlers in a dispute tied to the Clean Water Act. A three-judge appellate panel agreed unanimously with the dismissal of legal complaints against the trawlers.

    "Fisheries Reform Group alleges that shrimp trawlers operating in North Carolina's Pamlico Sound are violating the Clean Water Act by engaging in two types of unpermitted activity: throwing bycatch overboard and disturbing sediment with their trawl nets. But these activities do not violate the Clean Water Act," wrote Appeals Court Judge Julius Richardson.

    "The Act forbids the unpermitted discharge of a pollutant," Richardson explained. "Returning bycatch to the ocean is not discharging a pollutant, so throwing it overboard without a permit is not forbidden by the Act. Likewise, because the trawl nets merely kick up sediment already present in the Sound, their use does not discharge any pollutants either."

    The seven named defendants in the case are commercial shrimpers in Pamlico Sound. They harvest shrimp by dragging trawl nets along the ocean's floor.


    "[A]long the way, the nets also stir up sediment, which later resettles on the ocean floor," Richardson wrote. "They also inadvertently snare other fish and marine organisms. These other fish and marine organisms, many of which the trawlers cannot legally keep, are known as 'bycatch.' Trawlers throw the bycatch overboard, returning it to the ocean."

    An organization called Fisheries Reform Group and five individual plaintiffs sought "to change or limit" the trawling process. They filed suit under the federal Clean Water Act. Critics argued that "these shrimpers are violating the Act and must obtain Clean Water Act permits - on top of the fishing permits already required - to engage in commercial shrimping," Richardson wrote.

    Richardson spelled out implications of the plaintiffs' argument that bycatch is a pollutant covered by the Clean Water Act. If so, the case would expand the federal Environmental Protection Agency's regulatory authority.

    "The authority that Fisheries seeks for the EPA would have significant political and economic consequences," according to the 4th Circuit opinion. "Interpreting the Act to require the EPA to regulate bycatch would give it power over 'a significant portion of the American economy.' Almost every commercial or recreational fishermen in America would be subject to the EPA's new regulatory control. Anyone who fishes from a boat using live bait, or by chumming, or who - after catching a fish - releases it back into the ocean, would violate the Clean Water Act unless they first obtained a Clean Water Act permit alongside their ordinary fishing permits."

    Richardson cited the example of his daughter fishing on a boat and "casting a hooked mud minnow into the sea." "[B]ecause she has done so without a permit, she faces crushing consequences," the judge wrote. "So too if she - like most any fisherman - returns a fish that she caught, whether because she was targeting certain species, practicing catch and release, or complying with local harvesting limits or bans. At argument, Fisheries sought to assure me that the EPA would not exercise its discretion to lock her up or take her allowance. Small comfort."

    "My daughter is not the only one who should be concerned," Richardson added. "The economic and social consequences would be enormous. Fishing in America generates hundreds of billions of dollars, employs millions of people, and provides recreational sport for millions more. ... Forcing virtually every fisherman to risk punishment or obtain a permit from the EPA - separate from the existing state and federal schemes - would work an enormous effect."


    Richardson distinguished shrimp trawlers' work from excavation or construction on the ocean's floor that requires permits from the Army Corps of Engineers. "f you are not performing one of those activities, you are not dredging or filling. So the shrimpers are not dredging - and thus cannot be creating dredged spoil - simply because their nets temporarily kick up sediment as they trawl for the day's catch. And that means that they do not need to obtain a permit from the Corps," he wrote.

    Appellate Judge Allison Jones Rushing and US District Judge Sherri Lydon of South Carolina joined Richardson's opinion.