Conservation Law Foundation v. Hannaford Bros., Inc. (United Sates Court of Appeals for the Second Circuit)

The question raised in this case is whether the owners of a shopping mall parking lot located in South Burlington, Vermont, should be required to obtain a National Pollution Discharge Elimination System (“NPDES”) permit under the Clean Water Act (“CWA”) for the storm water runoff from the parking lot even though neither the federal Environmental Protection Agency (“EPA”) nor the delegated state agency, the Vermont Agency for Natural Resources (“VANR”) has required the owners to obtain such a permit. Under the broad definitions of the CWA, the storm water runoff is a “point source” that discharges pollutants into United States waters (in this case, Lake Champlain). At issue are the interpretation of the 1987 amendments to the Clean Water Act and the regulations promulgated by the EPA under those amendments. Hannaford’s position—which is supported by the EPA and which prevailed in the federal District Court—is that, the EPA and the delegated state authority (the VANR) have residual authority to determine whether a permit is necessary. Absent such a determination, the owners in this case are not required to obtain a permit. CLF, on the other hand, argues that Congress’s amendment of the Act did not alter the Act’s original requirement that all storm water runoffs that discharge pollutants into the nation’s waters are illegal absent an NPDES permit. NELF filed an amicus brief in support of Hannaford, in which it presented its members’ concern that, if CLF prevailed in the case, it would mean that all owners of storm water runoffs that discharge into federal waters, from large and small businesses to individual home owners, would be required to submit a complicated permitting process deemed unnecessary by the agencies charged with carrying out the mandate of the CWA. This would involve expense and inconvenience that NELF argued could have had a negative effect on land development and the New England economy in general. On July 21, 2005, the US Court of Appeals for the Second Circuit issued a Summary Order affirming the judgment of the District Court dismissing CLF’s claim.