In one of two recent decisions¹ that promise to streamline administration of the national pollutant discharge elimination system (NPDES), the United States Supreme Court validated the Environmental Protection Agency's (EPA's) refusal to hold a public hearing in connection with the granting of an extension of an NPDES permit for a California sewage treatment plant. In Costle v. Pacific Legal Foundation,² the Court interpreted the Federal Water Pollution Control Act (FWPCA)³ not to require the holding of a public hearing whenever a permit is proposed to be issued or modified. On the contrary, the Court concluded unanimously, the statutory requirement that permits be issued only after an "opportunity for [a] hearing"⁴ means no more than that the public must be invited to request a hearing; if no such requests are received, then no hearing need be held.

In Costle v. PLF, EPA had been blessed by a very favorable set of facts. The extension of the NPDES permit in question did not affect the status quo and had elicited virtually no public comment. Thus, the decision might be construed narrowly to obviate hearings only in such clearly noncontroversial cases. This would be a grudging interpretation, however. The Court made a discernible effort to take a long view of the Act's hearing requirements and to measure the Agency's regulations against them. The result is a fairly unequivocal endorsement of the means chosen by the Agency to implement one of the more ambiguous provisions of the Act. Costle v. PLF does not rule out future challenges to EPA's refusal to hold a hearing on an NPDES permit application, but it gives the Agency a trump card that should make such litigation less likely to arise or succeed.