Fairhurst

I. BACKGROUND

Hagener initiated a ten year program known as the Cherry Creek Native Fish Introduction Project (“Cherry Creek Proj- ect”), in which the Department sought to re-introduce a threat- ened fish species called the westslope cutthroat trout. Because this species was threatened in part by competition with other non-native trout species, Hagener’s program included a plan to remove the non-native fish. The Department would apply the pesticide antimycin into the water for short periods of time over the course of several years and afterwards reintroduce the westslope cutthroat. As the Department began executing the project, it performed at least one application of antimycin to Cherry Creek.

Fairhurst sued Hagener under the citizen suit provision of the CWA. Fairhurst claimed that in order to legally disperse pesticide into United States waters, Hagener was required by the CWA to obtain a National Pollutant Discharge Elimina- tion System (“NPDES”) permit, which Hagener had not secured before applying the antimycin. The parties stipulated that the Department applied the antimycin in accordance with the requirements of the label approved by the Environmental Protection Agency…