ELR Citation: ELR 20112
No(s). 06-35679 (9th Cir. May 22, 2007)

The court held that the U.S. Army Corps of Engineers violated the Clean Water Act (CWA) in issuing a permit that allows a mining company to discharge 210,000 gallons of slurry per day from the company's "froth-flotation mill" into Lower Slate Lake, a 23-acre lake in the Tongass National Forest in Alaska. CWA §§301 and 306, which set forth the Environmental Protection Agency's (EPA's) performance standard for froth-flotation mills, prohibit discharges from such operations into the navigable waters of the United States. Even though the discharge in this case facially qualifies for the permitting scheme under CWA §404 because it will change the bottom elevation of the lake, the discharge is nevertheless prohibited by the clearly applicable and specific performance standard. The plain language and structure of the CWA demonstrate that EPA's performance standard governs in this case. No exceptions are provided by the statute or its implementing regulations. Thus, the court erred in upholding the permit.

[A prior decision in this litigation can be found at 37 ELR 20068]