Federal Court Rules Stocking Fish Does Not Violate CWA

Posted November 21, 2013

In Pace v. Bonham, No. 12-cv-05610, 2013 WL 5945799, (N.D. Cal. November 4, 2013), the United States District Court for the Northern District of California dismissed a case which alleged that the California Department of Fish and Wildlife’s practice of stocking fish in lakes violated the Clean Water Act (CWA).  For a copy of the decision, please contact the National Agricultural Law Center at nataglaw@uark.edu.


The plaintiffs, Felice Pace of Del Norte County and Wilderness Watch, filed the lawsuit to challenge the Department’s fish stocking program.  Id. at *1.  The plaintiffs argued that when the Department releases native and non-native fish into lakes in California, it is discharging “biological materials” that are “pollutants” under the CWA § 1362(6).  Id.  Defendants filed a motion to dismiss.  Id.

Analysis and Holding

The district court dismissed the lawsuit, holding that the stocking of lakes with native and non-native fish did not violate the CWA.  Id. at *4. 

Under the CWA, any “discharge” of a pollutant from a point source into navigable waters of the United States is unlawful unless the discharge is covered by an NPDES permit.  Association to Protect Hammersley v. Taylor Resources, 299 F.3d 1007, 1009 (9th Cir. 2002) (quoting 33 U.S.C. § 1251(a)).  “Biological materials” are included in the CWA’s definition of “pollutant.” 33 U.S.C. §1362(6).  In Hammersley, the court held that “biological materials” covered by the CWA were the “waste product of a transforming human process” or the “waste product of a human or industrial process.”  Id. at *2 (quoting 299 F.3d at 1017).  The court reasoned that fish do not fall into the Hammersley definition of “biological materials,” and thus ruled that the CWA does not apply.  Id. at *3. 

The Lake County News and Courthouse News Service reported on the case here and here.  For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.