A Storm Water Permit Is Not Required Simply For Disturbing Land

In a case that disputes the U.S. Environmental Protection Agency’s position that any person who disturbs one acre of land or more must obtain a NPDES storm water permit, a Minnesota District Court has ruled that the storm water discharge must enter a navigable water before a permit is necessary.  In Schumann v. Corrigan, No. C9-02-1632, Slip Opinion (3d Judicial Dist. April 30, 2004), a developer (defendant) pumped out a temporary sediment pond into open fields.  The Minnesota Pollution Control Agency (MPCA) claimed that the developer had disturbed more than 5-acres of property and that under Minnesota’s National Pollutant Discharge Elimination System (NPDES) program, the defendant was required to have a permit before diverting the storm water. 

The court concluded that the developer had not violated the MPCA general permit nor was it required to obtain a permit for the discharge.  Without specifically putting the terms together, the court recognized that the Clean Water Act requires a permit for the discharge of a pollutant from a point source into a navigable water.  The court found that the developer had discharged a pollutant.  Furthermore, it explained that it the storm water diversion could arguably be considered a “point source.” Schumann, Slip Op. at 4 (Memorandum)  However, the court then noted that “ there would then have to be shown an identifiable connection between the point source and a run off of a pollutant into a navigable water.  Scientific evidence is clear the appropriate method to prove the connection.”  Id. at 7. The MPCA, however, had not offered any evidence that the disputed the developer’s contention that the storm water simply flowed into nearby fields.  Thus, the court held that because there was no evidence that the developer’s storm water discharged into a navigable water, the record did not support the State’s contention that the developer needed a permit.  [ return to top ]