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

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.