(July 14, 2009) The U.S. Supreme Court recently addressed jurisdictional issues on enforcement of the Clean Water Act (CWA) by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps), and sided with the argument that the Corps had the authority to issue a permit to allow mining waste to be discharged into an Alaska lake.
The case concerned: (1) whether the EPA or the Corps had authority to determine whether a permit should be issued to allow a gold mine's waste, also called slurry, to be discharged into the lake, and (2) whether a permit issued by the Corps to the gold mine was in accordance with the CWA.
The first issue involved the conflicting authority of the Corps and the EPA over the discharge of pollutants into the lake. Section 404 of the CWA authorizes the Corps to issue permits for the discharge of “fill material,” while section 402 authorizes the EPA to issue permits for the discharge of “any pollutant,” except as provided in section 404. The Court held that because joint regulations of the Corps and the EPA define slurry as “fill material,” the Corps had authority to issue permits for the slurry, despite the EPA's regulatory authority over pollutants.
The second issue concerned the Corps's ability to disregard an EPA performance standard governing mines like the one at issue in this case. Section 306 of the CWA forbids discharges that violate new source performance standards. The Court found the CWA ambiguous regarding section 306's application to section 404 permits issued by the Corps. Because of this ambiguity, the Court deferred to a 2004 internal EPA memorandum that said the performance standard did not apply to the initial discharge of slurry into the lake. The Court found this informal memorandum entitled to deference. (Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, No. 07-984 (June 22, 2009), available at http://www.supremecourtus.gov/opinions/08pdf/07-984.pdf.)