ELR Citation: ELR 20220
No(s). 98-1215 (2d Cir. Dec 8, 1999)

The court reverses a district court holding that the Clean Water Act (CWA) only allows the Secretary of the U.S. Army to delegate authority to issue CWA §404's discharge permits to the Chief of the U.S. Army Corps of Engineers. The district court dismissed indictment counts against a pipeline company and its employees charged with violating a CWA §404's permit issued by a lower level Corps employee. The court first holds that the CWA §404's phrase "acting through the Chief of Engineers" does not unambiguously preclude delegation of permit issuance authority. The CWA does not address delegation authority specifically. There is no legislative history indicating that Congress considered but rejected subdelegation. And the overall intent of the CWA is consistent with authority to subdelegate. The court next holds that the Secretary of the Army reasonably interpreted the CWA to allow subdelegation. Congress has used the same language in other statutes that contemplate the responsibility for a duty at a level below that of the Chief of Engineers. Further, the magnitude of the task of issuing permits suggests that Congress intended to allow subordinate Corps officials to issue permits and specify permit conditions. Also, the Secretary's interpretation is long-standing, and Congress has not acted to correct it.

The court then holds that the district court erred when it dismissed certain indictment counts for violation of permit conditions because the conditions did not directly relate to the discharge of dredged or fill material. The CWA §404's permit conditions are valid if they reasonably relate to a discharge, whether indirectly or directly, and, thus, remand was necessary to determine if the permit conditions at issue satisfied this standard.

Counsel for Appellant
Jared A. Goldstein
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellees
R. Stan Mortenson
Miller, Cassidy, Larroca & Lewin
2555 M St. NW, Washington DC 20036
(202) 293-6400