On June 22, 2009, the U.S. Supreme Court, in its last environmental ruling of the term, discussed the permitting authority distinction between a Clean Water Act Section 402 (NPDES discharge) permit, a Section 306 (pollutants from certain categories of new sources) permit and a Section 404 (fill/dredge) permit. In Coeur Alaska, Inc. v. Southeastern alaska Conservation Counsel, the issue was whether gold mining slurry that was to be discharged into a lake was properly regulated under the Army Corps’ CWA Section 404 permit program or whether U.S. EPA had the obligation to regulate the slurry under its CWA Section 402 and/or 306 authority. In finding that the Section 404 permit was proper, the Court reversed the Ninth Circuit ruling which had vacated the Army Corps Section 404 permit and found that a Section 306 permit was required. The case has a nice discussion of the allocation of authority in the Section 404 permitting process.
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