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June 26, 2009 |
EPA Has No Permitting Role When The Army Corps Issues Fill Permits The Supreme Court issued an opinion on June 22, 2009 holding that the U.S. Army Corps of Engineers (Army Corps), not the U.S. Environmental Protection Agency (EPA), is the exclusive and proper permitting authority under the Clean Water Act (CWA) with respect to deposits of waste material as fill into U.S waters. Coeur Alaska Inc. v. Southeast Alaska Conservation Council, and Alaska v. Southeast Alaska Conservation Council (Nos. 07-984 and 07-990, June 22, 2009). Coeur Alaska (Coeur), a mining corporation, had planned to reopen an Alaska gold mine using a process known as "froth flotation mining," which results in a waste slurry consisting of crushed rock and water. The company proposed to dispose of the slurry into the Lower Slate Lake, in Alaska. As proposed, the discharge would raise the bottom of the lake 50 feet, and would adversely affect fish and aquatic life in the lake. In 2005, Coeur applied for and received a Section 404 permit from the Army Corps to dispose of the slurry as fill material into the lake. The Army Corps reasoned that because the slurry met the regulatory definition of "fill material" and would raise the lake's bottom elevation, the CWA's dredge and fill permit program, not the CWA's effluent discharge program, applied. Several environmental groups (the "Plaintiffs") disagreed with the Army Corps decision and sued the Army Corps claiming (in relevant part) that EPA, under Section 402 of the Clean Water Act, not the Army Corps, governed the discharge because the slurry was a pollutant that would contaminate the lake and the activity was governed by an EPA new source performance standard. The Ninth Circuit Court of Appeals, in a unanimous decision, agreed with the Plaintiffs and ordered the Section 404 permit be voided. At issue in this case was which CWA regulatory structure governs the discharge of fill material. The CWA regulates the discharge of dredge and fill material into waters of the United States pursuant to permits issued by the Army Corps under Section 404. EPA, or the state if it has been delegated authority, administers a second program under Section 402, which applies effluent limitation and performance standards when pollutants from a point source are discharged into waters of the United States. The Supreme Court reversed the Ninth Circuit, holding that the Army Corps, not EPA, has exclusive authority to permit the discharge of fill material into a water of the United States. The Court reasoned that because the slurry was "fill material," Coeur properly obtained a Section 404 permit. The Court relied upon the language of Section 402, which forbids EPA from exercising regulatory authority over discharges governed by Section 404. Because all parties agreed that the slurry met the definition of "fill material," the Army Corps had exclusive permitting jurisdiction. The Court held that although Section 402 gives EPA broad authority to issue permits for discharge of pollutants into U.S. waters, "[t]he EPA may not issue permits for fill material that fall under the Corps' ý 404 permitting authority." Furthermore, the Court concluded that the Army Corps lawfully issued the permit to Coeur. The Plaintiffs argued that the permit was unlawful because the discharge would violate the new source performance standard, which prohibited such discharges. The Court addressed this question by looking at the text of the CWA and the agencies' own published regulations. The Court concluded that Congress was not clear on how an EPA new source performance standard applies to Section 404 and the regulations provided no "definitive" answer to the question. In light of this ambiguity, the Court turned to an internal memorandum prepared by EPA which concluded that new source performance standards did not apply when the discharge is regulated under Section 404. The Court's holding clarifies the interplay between Sections 404 and 402 of the Clean Water Act for any discharge to navigable waters and should streamline permitting for members of the regulated community. For questions regarding this Environmental Update, please contact any of the attorneys in Schiff Hardin's Environmental Group. RECENT ENVIRONMENTAL PUBLICATIONS
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