Master D.C. Circuit held that EPA lacks authority to categorically exempt point source discharges (e.g., storm sewers) from NPDES permitting under the Clean Water Act. with this comprehensive case brief.
Natural Resources Defense Council, Inc. v. Costle is a foundational Clean Water Act case that defined the scope of the Environmental Protection Agencys duty to regulate discharges of pollutants through the National Pollutant Discharge Elimination System (NPDES). The decision squarely addressed whether EPA could create categorical exemptions for entire classes of minor or administratively burdensome discharges, including urban storm sewers and certain agricultural/silvicultural discharges, despite the statutes broad command that any discharge from any point source must be permitted. The D.C. Circuits answer was unambiguous: EPA cannot rewrite the statute by exempting point sources; its discretion lies in how, not whether, to implement Congresss mandate.
The case has enduring significance. It concretized the legal distinction between point sources (which require permits) and nonpoint sources (addressed through planning and other mechanisms), clarified that urban stormwater conveyed through discernible systems is a point source discharge, and catalyzed the development of general permits and phased implementation strategies. It also influenced later legislative amendments, including Congresss express stormwater framework in 1987 and the statutory exemption for irrigation return flows in 1977, by making clear that only Congressnot the agencymay carve out categorical exclusions from the NPDES program.
568 F.2d 1369 (D.C. Cir. 1977)
In implementing the Clean Water Act of 1972, EPA promulgated regulations administering the NPDES permit program for discharges of pollutants to navigable waters. To manage what it viewed as overwhelming administrative burdens, EPA issued rules that categorically exempted certain types or classes of discharges from NPDES permitting even if they originated from point sources. Among the exempted categories were urban storm sewer discharges, various agricultural/silvicultural discharges (including irrigation return flows), and other minor point sources that EPA concluded were better handled through area-wide planning or were too numerous to permit individually. The Natural Resources Defense Council (NRDC) and other environmental organizations petitioned for review in the D.C. Circuit, arguing that EPAs categorical exemptions contravened the Clean Water Acts plain text, which makes unlawful the discharge of any pollutant from any point source except in compliance with a permit. EPA responded that it had implied authority to carve out exemptions for administrability and because some of the exempted activities were more akin to nonpoint source control under Section 208 planning. The petitions were consolidated and presented a facial challenge to EPAs authority to exempt entire categories of point sources from the permitting scheme.
Does EPA have authority under the Clean Water Act to categorically exempt classes of point source discharges (such as storm sewers and agricultural/silvicultural return flows) from the NPDES permitting requirement based on administrative infeasibility or policy judgments?
Under the Clean Water Act, 33 U.S.C. a7 a71311(a) (Section 301) makes it unlawful to discharge any pollutant from any point source to navigable waters except in compliance with the Act, including the NPDES permit program established in 33 U.S.C. a7 a71342 (Section 402). A point source is any discernible, confined and discrete conveyance (33 U.S.C. a7 a71362(14)). EPA lacks authority to create categorical exemptions from NPDES coverage for point sources absent an express statutory exemption. EPA retains implementation discretion to prioritize, phase, and streamline permitting (e.g., through general permits, area-wide or watershed permits, and scheduling), but it may not nullify the statutory requirement that point source discharges be covered by permits.
No. The D.C. Circuit held that EPA may not categorically exempt point source discharges from NPDES permitting. The court vacated the exemptions and remanded, directing EPA to regulate such discharges under the permit program while using permissible administrative tools to manage workload.
Text and structure. The court emphasized the Acts sweeping language: Section 301(a) prohibits discharges of any pollutant from any point source except in compliance with the Act, and Section 402 establishes the permit mechanism for those discharges. The statutory definition of point source is intentionally broad, covering pipes, ditches, channels, conduits, and similar conveyances. Nothing in the text authorizes EPA to declare that certain point sources require no permits; where Congress wished to exempt discharges, it did so expressly. The repeated use of the word any foreclosed EPAs categorical carve-outs. Point vs. nonpoint. EPA argued that some exempted discharges, especially stormwater and agricultural/silvicultural runoff, were more appropriately treated as nonpoint sources under Section 208 planning. The court rejected any blanket reclassification. While diffuse overland runoff not collected through a discrete conveyance may be a nonpoint source, discharges that are collected and delivered to waters through storm sewers, ditches, or similar channels are by definition point sources and therefore require permits. The agency cannot transform a point source into a nonpoint source by regulation. Administrative practicality. Recognizing EPAs resource constraints, the court explained that the Act grants ample implementation discretion without authorizing categorical exemptions. EPA may: (1) issue general or by rule permits to cover numerous similar dischargers; (2) prioritize processing and sequence permits over time; (3) tailor application and monitoring requirements proportionate to risk; and (4) coordinate with state programs. These tools address feasibility concerns while preserving statutory coverage. But permanent exemptions would rewrite the Act, exceeding EPAs delegated authority. Legislative context. The court noted that Congress created specific exceptions elsewhere in the statute and designed Section 208 as a complement to, not a substitute for, NPDES permitting. Allowing EPA to fashion blanket exemptions would upset the statutory scheme by removing whole categories of discharges from technology-based controls and enforcement mechanisms. If categorical relief is warranted for a class of point sources, Congress must provide it expressly (as it later did for irrigation return flows) rather than EPA by regulation. Remedy. The court vacated EPAs categorical exemptions to the extent they removed point source discharges from NPDES coverage and remanded for EPA to implement permissible administrative mechanisms, including general permits and phased scheduling, consistent with the Acts mandate.
NRDC v. Costle is a touchstone for both environmental and administrative law. It clarifies that storm sewer systems and other conveyances of runoff are point sources requiring NPDES permits, shaping the modern stormwater program. It also delineates the limits of agency discretion: agencies may not rewrite statutes by creating categorical exemptions absent explicit authorization. The case spurred EPAs use of general permits and informed later legislative choices, including the 1977 exemption for irrigation return flows and the 1987 stormwater amendments that phased and structured stormwater permitting. For students, the case is frequently cited for its textual analysis of any point source, its point/nonpoint distinction, and its illustration of how courts balance statutory mandates with administrative practicality.
Not necessarily an individual permit, but it must be covered by some NPDES permit if it is discharged from a point source (e.g., a municipal separate storm sewer, industrial storm sewer, or other discernible conveyance). The court endorsed the use of general permits to address large numbers of similar dischargers. Later, Congress enacted Section 402(p) (1987) to phase and specify stormwater permitting, but the baseline principle from NRDC v. Costle remains: stormwater conveyed through a point source is subject to NPDES.
The court rejected EPAs categorical exemptions for these discharges to the extent they involved point sources (e.g., runoff collected and discharged through ditches or channels). Pure diffuse runoff not collected in a discrete conveyance is nonpoint and not subject to NPDES. After the decision, Congress expressly exempted discharges composed entirely of return flows from irrigated agriculture from NPDES in the 1977 amendments, confirming that such categorical exemptions must come from Congress, not EPA.
No. The court specifically acknowledged EPAs authority to use administrative tools such as general permits, watershed or area-wide permits, phased schedules, and tailored monitoring/reporting to manage the program. What EPA may not do is declare that certain point sources categorically need no permits at all.
Sections 301(a) and 402 of the Clean Water Act (33 U.S.C. a7 a71311(a) and a7 a71342) and the definition of point source in Section 502(14) (33 U.S.C. a7 a71362(14)). The repeated use of the term any any pollutant from any point source was central to the courts textual analysis.
The decision established that storm sewers are point sources subject to NPDES, but EPA struggled with administrability. In 1987, Congress added Section 402(p), creating a phased stormwater program (e.g., MS4s, industrial stormwater) and temporarily exempting certain categories until regulations were issued. NRDC v. Costle provides the baseline: unless Congress says otherwise, point source stormwater discharges require NPDES coverage.
NRDC v. Costle firmly established that the Clean Water Acts NPDES program applies to all discharges from point sources, including stormwater conveyed through municipal or industrial systems, unless Congress explicitly provides an exemption. The court drew a clear line between permissible administrative flexibility in implementing the statute and impermissible agency attempts to override statutory mandates through categorical exemptions.
For practitioners and students, the case remains a lodestar for understanding point vs. nonpoint distinctions, the legal status of stormwater discharges, and the limits of administrative discretion. It also illustrates how judicial enforcement of statutory text can prompt both programmatic innovation (general permits, phased approaches) and legislative refinement, shaping the enduring architecture of U.S. water pollution control.