Federal courts have rejected separate efforts by environmentalists to define coal-loading facilities and chemically-treated utility poles as "point sources" that require Clean Water Act (CWA) permits. These rulings could limit the impact of an earlier case regulating pesticide spraying, National Cotton Council v. EPA, that industry feared could pull other unregulated sources into CWA regulation.

In an April 3 ruling, the US Court of Appeals for the 9th Circuit dismissed a suit that sought to require discharge permits for utility poles because "the poles are not 'discernible, confined and discrete conveyance[s]'" that channel and control storm water.

In Alaska, District Judge Timothy M. Burgess on March 28 used similar reasoning to reject environmentalists' attempt to sue coal and railroad companies for coal and coal dust deposition from a loading facility under the CWA, saying that the wind -- which deposits coal in surface waters near the challenged facilities -- can never be a "point source" of water pollution.

Burgess' decision appears to place limits on the precedent created by recent cases where courts have ruled that pesticide sprayers that operate adjacent to protected waters are point sources requiring permit coverage -- most notably National Cotton Council v. EPA, decided in ’09 by the US Court of Appeals for the 6th Circuit.

 

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In pesticide-spraying cases, Burgess wrote, "the courts found that pesticides channeled through a spraying apparatus on a truck or plane, when sprayed directly over water, met the statutory definition of a point source discharge." Without a discrete conveyance similar to a pipe or nozzle projecting coal dust directly into water, Burgess says, the cases are not analogous.

After the Supreme Court declined to review the NCC case, some industry officials feared it could open the door to regulation of dispersed emissions from power plants, livestock operations and fertilizer applications, which traditionally have been viewed as non-point sources.

The new ruling is being viewed favorably within the agricultural community because it seems to place limits on the pesticide cases' precedential effect, particularly after environmentalists have sought to regulate airborne materials through the water law.

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