ELR Citation: ELR 20637
No(s). 1331-71 (D.D.C. Dec 21, 1971)

The regulations implementing the Refuse Act Permit Program, to the extent that they allow the issuance of permits to discharge refuse matter into non-navigable waterways are invalid, and the Secretary is permanently enjoined from issuing such permits. The Refuse Act prohibits the depositing of refuse in navigable waterways of the United States and tributaries of such navigable waterways. Although the Secretary of the Army is authorized to life this prohibition with respect to navigable waterways his authority does not extend to non-navigable tributaries. The Secretary of the Army and the Corps of Engineers, in exercising their authority to issue permits for the discharge of refuse into navigable waters are not exempt from the procedural requirements of the National Environmental Policy Act of 1969 (NEPA). There is no exception to the duties imposed by the Act "for those agencies that may be viewed as environmental improvement agencies." NEPA requires each federal agency to independently review the impact of its major actions that significantly affect the environment and, as held in Calvert Cliffs Coordinating Committee v. Atomic Energy Commission, 1 ELR 20346 (D.C. Cir. July 23, 1971), recent amendments to the Federal Water Pollution Control Act do not modify this duty and authorize the acting agency to defer to environmental standards established by other agencies. To the extent that the Corps' regulations implementing the Refuse Act Permit Program allow the issuance of permits without requiring compliance with NEPA they are invalid and the issuance of such permits is permanently enjoined pending appropriate modification of the regulations. As recreational users of the Grand River, a river for which refuse permits may be issued pursuant to the challenged regulations, plaintiffs satisfy the test for standing set forth in Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970). The case presents a justiciable case or controversy because the challenged regulations are final. The suit is not barred by the doctrine of sovereign immunity.

Counsel for Plaintiffs
Jerome S. Kalur
Jamison, Ulrich, Burkhalter & Hesser
1425 National City Bank Building
Cleveland, OH 44114
(216) 621-4333

Donald W. Large
Union Commerce Building
Cleveland, OH
(216) 696-3939

Counsel for Defendants
Thomas C. Lee Attorney
Lands & Natural Resources Division
Department of Justice
Washington, DC 20530
(202) 739-2751