Tag Archives: Fourth Circuit

Fourth Circuit Limits Reach of Federal Regulation Under the “Major Questions” Doctrine as it Relieves Shrimp Trawlers from Clean Water Act Permitting

August 19, 2023   Gulf of Mexico, Mid Atlantic, South Atlantic

The Clean Water Act (“CWA”) regulates the discharge of certain “pollutants” into waters of the United States (“WOTUS”).  Should shrimp trawlers be subject to the regulatory framework under the CWA when they return “bycatch” (unintentionally captured marine life) back into a water of the United States, or when their trawl nets churn up rocks and sand on the ocean floor?  Not in the Fourth Circuit, as the United States Court of Appeals recently held in North Carolina Coastal Fisheries Reform Group v. Capt. Gaston LLC. This is perhaps an unsurprising conclusion.  The CWA is, after all, intended to regulate point-source pollution discharges into WOTUS—and, therefore, to regulate pollution and discharges. The U.S. Environmental Protection Agency (“EPA”) defines point source pollution as “any single identifiable source of pollution from which pollutants are discharged, such as a pipe, ship or factory smokestack.” >click to read< 10:46

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Panel hears debate on whether dead fish are pollutants

October 25, 2022   Mid Atlantic

A Fourth Circuit panel heard arguments Tuesday over whether dead fish dumped back into the water by shrimping boats counts as pollution under the Clean Water Act. “You never know what you’re going to pull up fishing,” attorney Brian David Schmalzbach of McGuireWoods, who argued on behalf of shrimp fisheries, told the three-judge panel.,, And, your honors, contrary to the briefing from the appellees, this is right down the middle of the barrel of the Clean Water Act,” said attorney James L. Conner of Calhoun Bhella & Sechrest, who represents the North Carolina Coastal Fisheries Reform Group, at Tuesday’s hearing. “Are you still arguing that putting live fish back in the water is a pollutant?” Conner began to respond but Rushing interjected with a follow-up question. “You’re not arguing that live fish are a biological material? Only dead fish are a biological material?” she asked. >click to read< 20:00

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