Flood Of Decisions Washes Away EPA Permits On Stormwater

by LeClairRyan

It has been more than 40 years since Congress created the National Pollutant Discharge Elimination System ("NPDES") as part of the 1972 Clean Water Act. Yet, confusion remains and disputes continue about which activities and discharges actually require permits. These issues are not focused on process or sanitary wastewater discharges, which have long been subject to permitting requirements. That is not to say that disputes about those programs do not exist, but the disputes typically concern how, not whether, to control these discharges.

Instead, the current controversies involve U.S. Environmental Protection Agency's long-standing nemesis — stormwater. Since enactment of the NPDES in 1972, the EPA has struggled to address stormwater discharges, now believed to be a major contributor to water quality impairments.

Within the last year, there has been a flurry of decisions focused on two critical stormwater issues: (1) whether the activity with which the stormwater discharge is associated actually requires a permit, and (2) whether the stormwater is discharged through a "point source." These decisions provide some insight about the primary remaining coverage disputes.

Before turning to the cases, it is useful to review 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.

Nonpoint sources, sheet or nonchannelized flow, are left to the states to address. This simple concept turns out to be far more complicated than on first blush given the breadth of the law's coverage. The law 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 law also excludes from this definition "agricultural stormwater" and "return flows from irrigated agriculture." Id. The recent decisions address issues that flow from this definition: (1) whether the stormwater at issue is "discharged" through a "point source," (2) whether it is subject to one of the statutory exemptions, or (3) whether the pollutants enter navigable waters through a nonpoint source.

When the 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 broad prohibition against the unpermitted discharges of pollutants. Natural Resources Def. Council v. Costle, 568 F.2d 1369, 1371 (D.C. Cir. 1977). After the 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 stormwater discharges.

The EPA's implementation of these provisions has resulted in a stormwater permitting program which has grown in size and complexity over the last 20 years. This regulatory system, combined with the growing recognition that the EPA has already done a pretty good job controlling the low-hanging fruit of industrial and sanitary sewer discharges, form the fertile ground for the present coverage disputes.

The Cases
The most significant recent case is the U.S. Supreme Court's decision in Decker v. Northwest Environmental Defense Center, 133 S.Ct. 1326, 1334 (2013), which addressed whether the 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 (e.g., ditches, culverts and channels), the issue addressed by the court was whether the EPA intended to designate such logging road discharges as "industrial" in the agency's regulations.

The court concluded that the EPA did not, and that, under the regulations at issue, the defendant was not required to obtain stormwater permits. Interestingly, a few days before the case was argued, the EPA issued amended regulations which expressly excluded such discharges from its stormwater regulations. The court’s decision makes clear that, within certain bounds of rationality, the EPA has discretion how to define which “industrial stormwater discharges” require permits.

Knowing which agricultural discharges require permits is less clear, as the EPA and environmental groups attempt to expand the reach of the permit program to cover discharges that, historically, have remained unpermitted. The Northern District of West Virginia addressed this issue in Alt v. US EPA (N.D. W.V. Oct. 23, 2013).

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 tracked or spilled in the farmyard. These materials were picked up by stormwater, which ran off into ditches and ultimately into navigable waters.

The EPA argued that these stormwater discharges required permits because they resulted from the CAFO operations, which 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 actual feeding operations, but rather were from other "agricultural" parts of the farm and thus exempt under the law. 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 another case concerning the statutory definition of “point source,” the Eastern District of California recently addressed the scope of the "return flows from irrigated agriculture" exemption in Pacific Coast Fed of Fishermen's Assn. v. Glaser (E.D. Cal. Sep. 16, 2013). This case involved farms in the San Joaquin Valley with tile drainage systems to direct irrigation return flows mixed with infiltrated ground water into streams and rivers. The plaintiff environmental group argued that these discharges were “point sources” because the drainage system discharge did not consist "entirely" of irrigation return flows and included subsurface flows and groundwater inflow.

The court rejected that contention, 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, like the Alt case, it signals that courts have been cautious to expand the permit requirements to include discharges which have not historically been thought to require permits.

The Ninth Circuit’s decision in Ecological Rights Foundation v. Pacific Gas & Electric Co. (9th Cir. 2013), also reflects this reluctance. In that case, the court 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 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.

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 (D. Alaska March 28, 2013), the district court 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. As in the Alt case, the court rejected a reading of the law that would require permits for pollutants which were “emitted” into the air and later picked up by stormwater and discharged. This is in contrast to pollutants which are emitted into the air from a point source and land directly in water, which require permits. See League of Wilderness Defenders v. Forsgren (9th Cir. 2002) (aerial spraying of pesticides which land in water requires permit).

The most recent case in this suite of opinions is one from the Eastern District of Washington, Sierra Club v. BNSF Railway Co (E.D. Wash. Jan. 2, 2014). 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. (At this stage, 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? Although they involve different fact patterns, they all address "discharges at the margin" (i.e., stormwater which has not been historically permitted but for which the scope of the exemption is not well-defined). The cases reflect that both the EPA and environmental groups are actively seeking to expand coverage to achieve greater control over stormwater discharges which they believe are contributing to the degradation of water quality. To date, the courts appear to be reluctant to go along, but as more of these cases arise, the tide may yet turn.

Source: Law360

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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