TITLE

Filling the Regulatory Gap: A Proposal for Restructuring the Clean Water Act's Two- Permit System

AUTHOR(S)
Moreno, Robert B.
PUB. DATE
May 2010
SOURCE
Ecology Law Quarterly;2010, Vol. 37 Issue 2, p285
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
The Clean Water Act (CWA) was passed in response to increased pollution in the nation's navigable waters caused by industrial actors and others. Congress sought to achieve two goals with the CWA: eliminate pollution discharges into the nation's waters, and achieve national uniformity in a water pollution control scheme. However, Congress recognized that complete elimination of all pollution discharges was not immediately achievable. As a result, it created a dual-permitting scheme under the CWA, authorizing the Environmental Protection Agency (EPA) to issue permits for the discharge of pollutants into navigable waters, and the U.S. Army Corps of Engineers (Corps) to issue permits for the discharge of "dredged or fill" material into navigable waters. The 2009 Supreme Court decision in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council reveals that the line separating the EPA's and the Corps' respective permitting authority has become blurred. In this case, the Court upheld the Corps' issuance of a "fill" permit to a gold mining project seeking to discharge mining waste into a nearby lake. The Court held that the Corps, and not the EPA, possesses the authority to issue permits for the discharge of fill material, regardless of whether the fill is also considered a pollutant under the CWA. Additionally, the Court held that the strict EPA-promulgated effluent discharge limitations for new sources of discharge do not apply to Corps permits. The Court's opinion threatens to undermine the two goals of the CWA because it opens the door for industrial actors to circumvent the stricter EPA permit requirements by simply ensuring their waste disposal contains a sufficient amount of fill. The EPA's uniform, technology-based permit requirements are stricter than the Corps', which evaluates permit applications on a case-by-case basis with no governing effluent limitations. After Coeur Alaska, the CWA could be upended by industrial actors seeking to avoid a stricter EPA permit in favor of a Corps permit. Although the EPA may veto any Corps permit, this power is rarely used. I propose multiple solutions to ensure both of Congress's goals of the CWA are met, ultimately advocating for an amendment to the CWA that would force Corps permits to comply with EPA-promulgated effluent pollution standards. This solution would have prevented the Corps permit issuance in the Coeur Alaska case, and it would uphold the integrity of the CWA into the future.
ACCESSION #
52547432

 

Related Articles

  • "A Breathtaking Assertion of Power"? Not Quite. Pronsolino v. Nastri and the Still Limited Role of Federal Regulation of Nonpoint Source Pollution. Garovoy, Jocelyn B. // Ecology Law Quarterly;2003, Vol. 30 Issue 3, p543 

    Explores the role of the U.S. Environmental Protection Agency to regulate nonpoint source pollution in the case, Pronsolino v. Nastri. Legal background of the U.S. Clean Water Act and its relevance to the nonpoint source pollution; Facts of the case; Economic incentives of adopting solutions to...

  • RECENT DEVELOPMENTS.  // Environmental Law Reporter: News & Analysis;Apr2011, Vol. 41 Issue 4, p10380 

    The article focuses on the developments of several environment-related bills, cases, and citations. It says that the deadline for commencement of construction of a hydroelectric project will be extended in the S. 334 bill by R. Risch. It adds that a petition for review of a U.S. Environmental...

  • Recent Developments in Environmental Law Wetlands Regulation and the United States Supreme Court. Minan, John H. // Urban Lawyer;Summer2006, Vol. 38 Issue 3, p523 

    The article focuses on wetlands regulation and the role of the U.S. Supreme Court on the environmental law. The Clean Water Act (CWA), the principal federal statute that deals with the regulation of water pollution in the U.S., consists of various regulatory programs administered at the federal...

  • DEP Bills Would Refine Narrative Water Quality Standards. Kasey, Pam // State Journal (WV);3/2/2012, Vol. 28 Issue 9, p8 

    The article discusses a senate bill 562 which was passed by West Virginia legislative assembly which defines the elusive biologic component of water quality standard of the state. The bill creates a standoff between the Department of Environmental Protection and the U.S. Environmental Protection...

  • TESTING THE WATERS AT THE EPA. Kriz, Margaret // National Journal;4/22/2000, Vol. 32 Issue 17, p1286 

    Focuses on issues concerning the United States (US) Environmental Protection Agency's (EPA) proposed water pollution control program. Issue on the legislation introduced by the US Senate that will block the EPA pollution runoff program; Causes of water pollution problems; Arguments on the...

  • States sue EPA over carbon dioxide emissions. Arias, Donya C. // Nation's Health;Aug2003, Vol. 33 Issue 6, p10 

    Reports on the move of three New England states to sue the U.S. Environmental Protection Agency (EPA) in June 2003 in an effort to force the government to regulate carbon dioxide emissions. Basis of the lawsuit; Dangers posed by global warming to the public; Provisions of the Clean Air Act.

  • Court tells EPA to rewrite emissions rule. Toloken, Steve // Plastics News;6/28/2004, Vol. 16 Issue 17, p11 

    A federal court has tossed out part of the U.S. Environmental Protection Agency's (EPA) emissions standards for PVC manufacturing plants, ruling that the agency failed to set limits for emissions of several hazardous air pollutants. The June 18 ruling from the U.S. Court of Appeals for the...

  • CLEAN WATER ACT STILL MURKY. Madison, Adam // Rock Products;Oct2003, Vol. 106 Issue 10, p34 

    Focuses on issues related to the U.S. Clean Water Act as of October 2003. Decision of the Supreme Court on the case Solid Waste Agency of Northern Cook County versus the Army Corps of Engineers in 2001; Discussion on the regulation of all waters that are isolated from navigable waters;...

  • EPA PROPOSES NEW COOLING WATER INTAKE STRUCTURE STANDARDS.  // Venulex Legal Summaries;2011 Q2, Special section p1 

    The article focuses on the proposed new rule issued by the U.S. Environmental Protection Agency (EPA) which would set standards for the cooling water intake structures at most existing facilities. It offers information on the two alternatives that are established in the proposed rule to meet the...

Share

Read the Article

Courtesy of VIRGINIA BEACH PUBLIC LIBRARY AND SYSTEM

Sorry, but this item is not currently available from your library.

Try another library?
Sign out of this library

Other Topics