[Download January 12, 2008 Argument Calendar PDF]
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Coeur Alaska, Inc. v. Southeast Alaska Conservation Coun.
Administrative Law, Environmental Law, Section 404 of the Clean Water Act
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.
Jonathan S. Franklin
Fulbright & Jaworski L.L.P.
Theodore B. Olson
Gibson Dunn & Crutcher LLP
United States Dept. of Justice
David C. Crosby
David C. Crosby, P.C.
Thomas S. Waldo
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