Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, Battery Council International, Respondents-Intervenors

concurring in part and dissenting in part:

I concur in Parts I, II.A, II.C.l, II.C.4, II.E, and much of Part II.B of the majority opinion. I dissent from Part II.B.2.C, directing EPA to issue supplemental regulations. I dissent also from Parts II.C.2 and II.C.3, in which the court invalidates EPA’s exclusion of storm water discharges from certain light industrial and small construction sites from the definition of “discharges associated with industrial activity.” Finally, I concur in the result, but not the reasoning, of Part II.D, holding that EPA has not acted unlawfully by failing to include specific control requirements in the permit application regulations.

*1312 I

The majority holds that EPA has violated statutory requirements by failing to set dates for approval of, and compliance with, permits as part of its permit application program. Ante at 1300. Despite the holding in Part II.B.2.b that injunctive relief is inappropriate (with which I agree), the majority in Part II.B.2.C orders EPA to issue supplemental regulations setting such deadlines immediately.

I am not convinced that the statute requires EPA to set these deadlines as part of the permit application process.…

The Natural Resources Defense Council (“NRDC”) challenges aspects of the Environmental Protection Agency’s (“EPA”) recent Clean Water Act storm water discharge rule. 1 NRDC argues that the deadlines contained in the rule and the scope of its coverage are unlawful under section 402(i), (p) of the Clean Water Act, 33 U.S.C. § 1342 (Z), (p). We grant partial relief.

I. BACKGROUND

In 1972 Congress enacted significant amendments to the Clean Water Act (“CWA”), 2 33 U.S.C. §§ 1251-1387 (1988), “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251 (a). One major focus of the CWA is the control of “point source” pollution. A “point source” is “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362 (14). The CWA also established the National Pollutant Discharge Elimination System (“NPDES”), requiring permits for any discharge of pollutants from a point source pursuant to section 402 of the CWA, 33 U.S.C. § 1342 . The CWA empowers EPA or an authorized state to conduct an NPDES permitting, program. 33 U.S.C. §…

966 F.2d 1292 34 ERC 2017 , 61 USLW 2015 , 22 Envtl. L. Rep. 20,950 NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Battery Council International, et al., Respondents-Intervenors. Nos. 90-70671, 91-70200. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 9, 1991. Decided June 4, 1992. Robert W. Adler, Natural Resources Defense Council, Washington, D.C., for petitioner. Daniel S. Goodman, U.S. Dept. of Justice, Washington, D.C., for respondent. Petition for Review of a Rule Promulgated by the Environmental Protection Agency. Before PREGERSON, FERGUSON, and O'SCANNLAIN, Circuit Judges. FERGUSON, Senior Circuit Judge: 1 The Natural Resources Defense Council ("NRDC") challenges aspects of the Environmental Protection Agency's ("EPA") recent Clean Water Act storm water discharge rule. 1 NRDC argues that the deadlines contained in the rule and the scope of its coverage are unlawful under section 402(l), (p) of the Clean Water Act, 33 U.S.C. § 1342 (l), (p). We grant partial relief. I. BACKGROUND 2 In 1972 Congress enacted significant amendments to the Clean Water Act ("CWA"), 2 33 U.S.C.…