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US Supreme Court Docket

Supreme Court Docket

[Download January 12, 2008 Argument Calendar PDF]

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Coeur Alaska, Inc. v. Southeast Alaska Conservation Coun.
No. 07-984


    Coeur Alaska, Inc. v. Southeast Alaska Conservation Coun.



    The Clean Water Act provides two separate programs for the permitting of
    discharges into navigable waters of the United States. Under Section 404 of the
    Act, the Army Corps of Engineers may issue permits for discharges of "fill material,”
    subject to the water-quality restrictions imposed by Section 404(b)(1). Under
    Section 402 of the Act, the Environmental Protection Agency may issue permits for
    the discharge of all other pollutants, subject to the effluent limitations prescribed
    under Sections 301 and 306 of the Act.

    In 2002, after notice and comment, the EPA and the Corps jointly promulgated a
    regulation defining the statutory term “discharge of fill material” to include “tailings or
    similar mining-related materials.” Pursuant to its authority under Section 404 to
    grant permits for the discharge of “fill material,” the Corps granted petitioner a
    permit to deposit certain mine tailings in a lake.

    In the decision below, the Ninth Circuit invalidated that permit even though it
    acknowledged that the proposed discharge “facially meets the current regulatory
    definition of ‘fill material.’” Upsetting 35 years of established agency practice, the
    court of appeals held that the Corps may not issue a Section 404 permit for the
    discharge of fill material if the fill material in question otherwise would be subject to
    a Section 301 or 306 effluent limitation.

    The question presented is whether the Ninth Circuit erred in reallocating the
    Corps’ and EPA’s permitting authority under the Act.



  • Docket Sheet From the U.S. Supreme Court.


    Coming Soon
Counsel of Record

For Petitioner:

Jonathan S. Franklin
Fulbright & Jaworski L.L.P.
Washington, DC

Theodore B. Olson
Gibson Dunn & Crutcher LLP
Washington, DC

For Respondent:

Elena Kagan
United States Dept. of Justice
Washington, DC

David C. Crosby
David C. Crosby, P.C.
Juneau, AK

Thomas S. Waldo
Juneau, AK


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