ELR Citation: ELR 20133
No(s). 07-984 (U.S. Jun 22, 2009)

The U.S. Supreme Court held that the Corps, not EPA, has the authority to permit slurry discharges from mining operations, and that the Corps complied with the law in issuing such a permit to a gold mine in Alaska. CWA §404 grants the Corps the power to "issue permits . . . for the discharge of . . . fill material" whereas CWA §402 grants EPA authority to "issue a permit for the discharge of any pollutant" except as provided in §404. Because the slurry the mining company wishes to discharge is defined by regulation as fill material," the company properly obtained its permit from the Corps rather than from EPA. As for claims that the permit violated EPA's new source performance standards and is unlawful under CWA §306, the Act is ambiguous as to whether CWA §306 applies to discharges of fill material regulated under §404. Regulations bearing on §§306 and 404 are ambiguous as well. The Court, therefore, turned to the agencies’ subsequent interpretation of those regulations and found that the question at issue can be resolved by two agencies’ practice and policy as recited in EPA’s internal "Regas Memorandum." This memorandum explains that the performance standard applies only to the discharge of water from the lake into the downstream creek and not to the initial discharge of slurry into the lake. Though the memorandum is not subject to sufficiently formal procedures to merit full Chevron deference, the Court deferred to it because it is not plainly erroneous or inconsistent with the regulations. Kennedy, J., delivered the opinion of the Court, in which Roberts, C.J., and Thomas, Breyer, and Alito, JJ., joined, and in which Scalia, J., joined in part. Breyer, J., filed a concurring opinion. Scalia, J., filed an opinion concurring in part and concurring in the judgment. Ginsburg, J., filed a dissenting opinion, in which Stevens and Souter, JJ., joined.

[Prior decisions in this litigation can be found at 37 ELR 20068 and 37 ELR 20112.]