Pg&e

BACKGROUND

A. Statutory and regulatory background

1. The CWA

The CWA is designed to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA prohibits the “discharge of any pollutant.” Id. § 1311(a). “Discharge of a

ECOLOGICAL RIGHTS FOUNDATION V . PG&E

pollutant” refers to “any addition of any pollutant to navigable waters from any point source;” “pollutant” refers to, among other things, “solid waste” and “chemical wastes;” and “navigable waters” refers to “the waters of the United States . . . .” Id. §§ 1362(6), (7), (12).

The Environmental Protection Agency (“EPA”), or a State to which EPA has delegated its authority, may issue a National Pollutant Discharge Elimination System (“NPDES”) permit “for the discharge of any pollutant, . . . notwithstanding section 1311(a) of this title.” Id. § 1342(a). NPDES permits are required for discharges from any “point source,” but not for discharges from “nonpoint sources.” League of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1183 (9th Cir. 2002). Permits are either individual (authorizing “a specific entity to discharge a pollutant in a…

Opinion by Judge CALLAHAN; Concurrence by Judge HURWITZ.

OPINION

Defendants-Appellees Pacific Gas & Electric Company (“PG & E”) and Pacific Bell Telephone Company (“Pacific Bell”) own and maintain utility poles throughout the San Francisco Bay Area. Many of the poles are treated with a wood preservative that contains pentachlorophenol (“PCP”), a general biocide, and other chemicals. Plaintiff-Appellant Ecological Rights Foundation (“ERF”) filed this action against both companies, alleging that the poles discharge wood preservative into the environment in violation of the federal Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387 , and the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901 -6992k.

The district court, which had jurisdiction pursuant to 28 U.S.C. § 1331 , 33 U.S.C. § 1365 (a)(1), and 42 U.S.C. § 6972 (a)(1)(B), dismissed ERF’s action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), without leave to amend. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. *505 ERF fails to state a claim under the CWA because discharges of stormwater from the utility poles are neither a “point source discharge” nor…

concurring in part and concurring in the result:

I concur in the majority opinion except insofar as it holds that utility poles cannot be point sources for purposes of the Clean Water Act under circumstances not presented by this case. See supra pp. 508-10. Resolution of this difficult issue is entirely unnecessary, given the opinion’s conclusion — which I join — that the defendants’ utility poles are not “associated with industrial activity.” See supra pp. 511-14.