{"title":"Filling the Regulatory Gap: A Proposal for Restructuring the Clean Water Act’s Two-Permit System","authors":"Robert B. Moreno","doi":"10.15779/Z38CK23","DOIUrl":null,"url":null,"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.","PeriodicalId":346805,"journal":{"name":"Natural Resources Law & Policy eJournal","volume":"39 1","pages":"0"},"PeriodicalIF":0.0000,"publicationDate":"2011-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"1","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Natural Resources Law & Policy eJournal","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.15779/Z38CK23","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"","JCRName":"","Score":null,"Total":0}
引用次数: 1
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.
《清洁水法》(CWA)的通过是为了应对由工业行为者和其他因素造成的国家通航水域日益严重的污染。国会试图通过《清洁水法》实现两个目标:消除向全国水域排放的污染,实现全国水污染控制方案的统一。然而,国会认识到,完全消除所有污染排放不可能立即实现。因此,它根据《清洁水法》制定了一项双重许可计划,授权环境保护署(EPA)颁发向通航水域排放污染物的许可证,授权美国陆军工程兵团(Corps of engineering)颁发向通航水域排放“疏浚或填埋”材料的许可证。2009年,最高法院对“阿拉斯加中心公司诉阿拉斯加东南部保护委员会”一案的判决表明,环境保护局和海洋兵团各自的许可权力之间的界限已经变得模糊。在这个案件中,法院支持军团对一个金矿开采项目发放填埋许可证,该项目试图将采矿废料排放到附近的湖泊中。法院认为,无论填充物是否也被认为是《清洁水法》规定的污染物,该公司而不是环境保护署都有权签发填充物排放许可证。此外,法院认为,环保署颁布的针对新排放源的严格的污水排放限制不适用于军团许可证。法院的意见有可能破坏《清洁水法》的两个目标,因为它为工业行为者打开了一扇门,使他们可以通过简单地确保其废物处置中含有足够数量的填充物来规避更严格的环境保护局许可要求。环保署统一的、基于技术的许可证要求比海军陆战队的更严格,海军陆战队的许可证申请是在个案的基础上进行评估的,没有管理废水的限制。在“阿拉斯加之心”事件之后,工业行为者可能会试图避免更严格的EPA许可,而倾向于兵团许可,从而颠覆《清洁能源法》。虽然环境保护署可以否决任何军团的许可,但这种权力很少被使用。我提出了多种解决方案,以确保国会对《清洁水法》的两个目标都能实现,并最终主张对《清洁水法》进行修订,以迫使海军陆战队的许可证符合环保署颁布的污水污染标准。这一解决方案将阻止Coeur Alaska案例中Corps许可证的发放,并将在未来维护CWA的完整性。