Natural Resources Defense Council v. Costle 568 F.2d 1369 (D.C. Cir. 1977)
The Federal Water Pollution Control Act Amendments (the
forerunner to the Clean Water Act) §402 required that EPA
regulate point sources of pollution.
EPA decided that this was an almost unmanageable task, and
the EPA Administrator decided to exempt certain classes of point sources
from the permitting requirements of §402.
Exempted sources included some forestry and farming
sources, storm sewers, plus some other things.
EPA felt that these exemptions would allow them to focus
on the big polluters without having to waste energy going after point
sources they felt didn't need to be regulated.
The Natural Resources Defense Council (NRDC) sued,
claiming that EPA did not have the authority to exempt sources under §402.
The NRDC argued that the language of §402 included
all sources and the EPA could not choose to not enforce the law.
EPA argued that since they had the authority to grant or
deny permits under §402, they must also have the authority to
exempt classes from permitting requirements altogether.
The Trial Court found for NDRC and told EPA to enforce the
law. EPA appealed.
The Trial Court found that the FWPCA did not grant the
EPA the authority to exclude any class of point sources from the permit
The Appellate Court affirmed.
The Appellate Court found that technical or
administrative infeasibility may result in adjustments to the permit
programs, but it does not authorize the EPA Administrator to exclude
relevant point sources from the program.
The Court suggested that EPA lower their permitting
requirements for certain circumstances to improve feasibility.
For example, they could reduce the permitting requirements
to simply requiring that the permittee monitor and report effluent
The Appellate Court also suggested that EPA could create
a system of area-wide permits to help alleviate the administrative