The question raised in this case was 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 were the interpretation of the 1987 amendments to the CWA and the regulations promulgated by the EPA under those amendments. Hannaford’s position—which was supported by the EPA—was that the EPA and the delegated state authority (the VANR) have residual authority under the CWA to require that a storm water runoff permit be obtained upon a determination that it is necessary. Absent such a determination, the owners in this case are not required to obtain a permit. CLF, on the other hand, argued that Congress’s amendment of the CWA did not alter the CWA’s original requirement that all storm water runoffs that discharge pollutants into the nation’s waters are illegal absent an NPDES permit. After having its complaint dismissed by the Federal District Court in Vermont, CLF appealed to the Second Circuit.
On October 29, 2004, NELF filed an amicus brief in support of Hannaford’s opposition to CLF’s appeal, presenting to the Second Circuit 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 go through the complicated permitting process even though the agencies charged with carrying out the mandate of the CWA have not determined that this is necessary. This would involve potentially huge expense and inconvenience that NELF argued would have a negative effect on land development and the New England economy in general.
On July 22, 2005, the Court of Appeals, agreeing with Hannaford and NELF, entered a Summary Order affirming the District Court’s decision dismissing CLF’s complaint.