Do You Need To Permit Your Stormwater Discharge?

by LeClairRyan

stormwater drainIt has been more than 40 years since Congress created the National Pollutant Discharge Elimination System (NPDES) in the 1972 Clean Water Act.  Yet, confusion remains about which activities and discharges actually require permits.  The arguments are not about process or sanitary wastewater, which have long been subject to permitting requirements. It’s not that disputes about those programs do not exist, but the arguments about these issues generally concern how, not whether, to control these discharges.  Instead, the controversy is focused on EPA’s long-standing nemesis – stormwater.  From the outset, EPA has struggled with how to address stormwater discharges (as I explained in this 2004 article (subscription required)), now believed to be a major cause of water quality impairments.  The last year has seen a flurry of decisions focused on two critical stormwater issues: (i) whether the activity with which the discharge is associated is covered by the Act or EPA’s stormwater regulations, and (ii) whether the stormwater is discharged through a “point source.”

It is worthwhile to review these, as they provide some insight into which stormwater discharges require permits.

A brief primer on the NPDES and the regulation of stormwater before turning to the cases.  The Clean Water Act generally makes it unlawful to “discharge” pollutants from a “point source” to navigable waters of the United States without a NPDES permit.  Non-point sources (sheet or non-channelized flow) are left to the states.  This simple concept turns out to be far more complicated than upon first blush given the breadth of the Act’s coverage.  The Act defines “point source” as

“any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feed operation, or vessel or other floating craft, from which pollutants are or may be discharged.”

But the Act also excludes from this definition “agricultural stormwater” and “return flows from irrigated agriculture.”  The recent disputes center around whether the stormwater at issue is “discharged” through a “point source,” whether it is subject to one of the statutory exemptions, or whether the pollutants enter navigable waters through a non-point source.

When EPA issued its first regulations implementing the NPDES, it exempted stormwater discharges from its coverage, an exemption which the D.C. Circuit quickly rejected as inconsistent with the Clean Water Act’s prohibition against the unpermitted discharges of pollutants.  After EPA struggled for years to develop a workable stormwater permitting system, Congress ultimately stepped in and enacted a phased-in program for industrial and municipal storm water discharges.  EPA’s implementation of these provisions has resulted in a stormwater permitting program which has grown in size and complexity for the last 20+ years.  The program, however, exempted certain agricultural discharges and did nothing to address non-point sources.  This mish-mash regulatory system, combined with the growing recognition that EPA has already done a pretty good job controlling the low-hanging fruit (industrial and sanitary sewer discharges), form the fertile ground for the present coverage disputes.

The most significant recent case is the Supreme Court’s 2013 decision in Decker v. Northwest Env’tl. Def. Ctr., which addressed whether EPA’s industrial stormwater regulations included stormwater from logging roads channeled into ditches, culverts and channels and discharged into nearby rivers and streams.  While there was no dispute that these discharges were made through point sources (the ditches, culverts and channels), the issue addressed by the Court was whether EPA intended to designate such logging road discharges “industrial” in the Agencies’ regulations.  The Court concluded that  EPA did not, and that, under the regulations at issue, the defendant was not required to obtain stormwater permits.  (Note that a few days before the case was argued, EPA issued amended regulations which expressly excluded such discharges from its stormwater regulations).  So, if you are engaged in logging and forestry operations, you can be fairly sure that stormwater runoff from your roads does not require a permit.

animal_feed_dischargeKnowing whether your agricultural discharges require permits, unfortunately, is not so clear.  The Northern District of West Virginia addressed one such issue in Alt v. U.S. EPA.  There, the court concluded that stormwater discharges from a farm with a confined animal feeding operation (CAFO) did not require a permit.  In this case, the animal confinement area, manure storage and raw materials were all located inside or under cover.  Stormwater from the farm, including stormwater from areas in between the animal confinement buildings, contained manure, feathers and dust which apparently landed on the ground after being emitted through ventilation fans or were otherwise tracked or spilled in the farmyard.  This contaminated stormwater ran off into ditches and ultimately into navigable waters.  EPA argued that these stormwater discharges required permits because they resulted from the CAFO operations, and stormwater discharges from CAFOs are regulated point sources.  The court disagreed, however, concluding that the discharges were exempt “agricultural stormwater.” The court reasoned that the areas where the stormwater picked up the contaminants were not part of or from the CAFO but rather were from other “agricultural” parts of the farm and thus exempt.  While only a single district court case, the decision supports arguments that airblown pollutants which are picked up by stormwater do not require permits.

In a related vein, the Eastern District of California recently addressed the scope of the “return flows from irrigated agriculture” exemption in Pacific Coast Fed. of Fishermen’s Ass’n. v. Glaser.  This case concerned farmers in the San Joaquin Valley who use tile drainage systems to direct irrigation return flows mixed with infiltrated ground water into streams and rivers.   Plaintiffs argued that  the permit exemption did not apply because the drainage system discharge did not consist “entirely” of irrigation return flows and included subsurface flows and groundwater inflow.  The court rejected that argument, concluding that  infiltrated groundwater and subsurface flows related to the irrigated crop production and agricultural activities fall within the exemption.  This case is likely to proceed to the Ninth Circuit, but it does support a reasonably broad reading of the irrigation return flows exemption.

Moving from agriculture, the Ninth Circuit in Ecological Rights Foundation v. Pacific Gas & Electric Co., recently concluded that a permit is not required for stormwater which comes into contact with utility poles treated with biocides and other chemicals   The court first concluded that the the utility poles are not “point sources” because they do not themselves convey the runoff to navigable waters.  The court also held that stormwater contacting the utility poles is not “associated with industrial activity” because utility poles are neither industrial plants nor related to the manufacturing, process or raw materials storage at such plants.  Utility poles do not require permits.

The Ninth Circuit will also have the opportunity to consider a second stormwater case, this one a decision by the U.S. District Court for the District Court of Alaska. In Alaska Community Action on Toxics v. Aurora Energy Services, LLC,  the district held that coal dust blown from a coal pile and landing in surface water does not constitute a point source discharge because the coal dust is not “discharged” into surface water through a confined, discrete conveyance.

coal transportThe most recent case in this suite of opinions is one from the Eastern District of Washington, Sierra Club v. BNSF Railway Co.  The BNSF case involves the issue of whether coal and coal dust which fall off of, or are blown from, rail cars onto land and then subsequently picked up by stormwater must be permitted as industrial stormwater discharges.  (BNSF did not dispute that coal and coal dust that enter navigable water directly from rail cars is a point source discharge because rail cars are “rolling stock” and thus within the statutory definition of “point source”).  On a motion to dismiss, the Court declined to answer this question, allowing plaintiffs to develop facts to

“show that BNSF’s railway illegally introduced pollutants into navigable water without a permit.”

So, what can we make of these cases?  They all involve different fact patterns, but they all involve what I would call “discharges at the margin”; i.e., stormwater which may not have been permitted in the past but for which the scope of the exemption is not well-defined.  There is no obvious trend within the decisions to suggest that courts will tend to favor coverage, although in most of the cases discussed above the courts rejected the arguments seeking to require permits.  Rather, the cases reflect that both EPA and environmental groups are seeking to expand coverage to sources that historically may not have been permitted.  The courts considering these cases all have given careful evaluation to the specific facts and the law to determine whether the Clean Water Act actually requires permitting of these “marginal” sources.   The lesson to be learned, if any, is that, if you have a stormwater discharge that has not traditionally been permitted, you need to take a careful look to confirm that no permit is actually required.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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