Dubois v. United States Department of Agriculture

Loon Pond (the pond) was a pristine, high-altitude body of water with a surface area of 19 acres located in a mountainous forest area of New Hampshire. The pond had a water-quality rating of “Class A,” provided drinking water to a town, and supported the ski and snowmaking operations of Loon Corp. (Loon) (defendant). Loon applied to the United States Forest Service (the Forest Service) (defendant) for a special-use permit to expand Loon’s ski facilities. The Forest Service’s management of the mountainous area was subject to compliance with the Clean Water Act (CWA). Loon planned to draw water in part from the East Branch of the Pemigewasset River (the river); use the river water in Loon’s snowmaking equipment and process; and make the river water pass through Loon’s pipes and discharge into the pond. The pond water naturally flowed downhill and eventually emptied into the river; however, the river water had a lower water-quality rating and contained pollutants. The Forest Service approved Loon’s permit, positing that the pond and the river were hydrologically connected and that there was no “addition” of any pollutant into the pond. Roland Dubois (plaintiff) sued the government and Loon in district court to stop the expansion project. Dubois argued that the Forest Service had failed to obtain a National Pollutant Discharge Elimination System (NPDES) permit, which was required under the CWA for discharges of pollutants into navigable waters. On cross-motions for summary judgment, the district court ruled in favor of the Forest Service. Dubois appealed. The only disputed issue on appeal was whether there was a discharge through an “addition” of a pollutant into the pond under Loon’s plan.