Water Pollution Problems
pp. 588-589 (5th edition) FIGURE 6.1  Source: EPA, National Water Quality Inventory, 2004 Reporting Cycle (2009)
FIGURE 6.3 Leading Causes of Pollution in U.S. Rivers
Source: EPA, National Water Quality Inventory, 2004 Reporting Cycle (2009) Federal Jurisdiction under the Clean Water Act: The Impact of Rapanos
p. 608 (5th edition):
Rapanos understandably has created great confusion concerning the scope of federal jurisdiction under the Clean Water Act. While Justice Kennedy cast the decisive vote in the case, his "substantial nexus" test was expressly rejected by the other eight Justices. Yet it may be necessary to satisfy his test in order to command a majority of the Court in support of federal jurisdiction, as some courts have recognized. U.S. v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006); Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007); U.S. v. Robinson, 505 F.3d 1208 (11th Cir. 2007). Other courts have noted that waters that satisfy either Justice Kennedy's "substantial nexus" test or the "continuous surface connection" test in Justice Scalia's plurality opinion are likely to command a majority of the Court in light of the four dissenters willingness to defer to the Corps definition of jurisdictional waters. See, e.g., United States v. Johnson, 467 F.3d 56 (1st Cir. 2006). The Supreme Court has refused to clarify the Rapanos decision, despite the urging of the U.S. Department of Justice, which asked it to review a decision by the Eleventh Circuit in McWane v. United States, cert denied, 129 S.Ct. 630 (2008). In December 2008 EPA and the Army Corps of Engineers issued revised guidance concerning the impact of the Rapanos decision on federal Clean Water Act jurisdiction. Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States (Dec. 2, 2008). The guidance provides that federal jurisdiction will be asserted over all traditional navigable waters, wetlands adjacent to traditional navigable waters, non-navigable tributaries of traditional navigable waters, navigable waters that are relatively permanent (waters with tributaries that typically flow year-round or that that at least have continuous seasonal flows) and wetlands that directly abut such tributaries. The guidance states that further fact-specific inquiry must be conducted to determine if Justice Kennedy's "significant nexus" test is satisfied for non-navigable tributaries that do not flow year-round or have continuous flow at least seasonally, wetlands adjacent to such tributaries, and wetlands adjacent to, but not directly abutting relatively permanent, non-navigable tributaries. In December 2008, John Rapanos and his co-defendants agreed to settle with the federal government by paying a $150,000 civil penalty, restoring approximately 100 acres of wetlands at a cost of $750,000, and granting the state of Michigan a conservation easement over another 134 acres of wetlands. Associated Press, "Deal Reached in Decades-Old Michigan Wetlands Dispute," Dec. 29, 2009. Congressman James Oberstar, chairman of the House Transportation and Infrastructure Committee, held hearings in 2007 and 2008 on a bill titled "The Clean Water Act Restoration Act" that is intended to reverse the Rapanos decision. If you were to draft a bill to reverse Rapanos and restore federal jurisdiction to what it was before the decision, how would you define "waters of the United States"? Would you remove the word "navigable" from the Clean Water Act's jurisdictional definition? The “Addition of Any Pollutant” and Incidental Fallback
p. 623 (5th edition): After initially delaying for 60 days the effective date of the new regulations redefining "discharge of dredged materials," the incoming Bush administration allowed the rules to take effect in April 2001. EPA Administrator Christine Todd Whitman strongly endorsed the regulations as an important step toward protecting the nation’s wetlands. She noted that no regulatory action could fully close the loophole in the Clean Water Act created by the National Mining decision, which only Congress can correct. However, in January 2007, a federal district court issued an injunction blocking application and enforcement of the 2001 definition of "incidental fallback," concluding that EPA and the Corps had erred by limiting it to "small volumes of dredged material." National Ass'n of Home Builders v. U.S. Army Corps of Engineers, 2007 WL 259944 (2007). The Impact of Miccosukee: The Unitary Waters Theory
p. 629 (5th edition): On remand from the Supreme Court the district court in Miccosukee rejected the EPA's "unitary waters" theory and held that diversion works such as pump stations required NPDES permits to the extent that they transfer water from "meaningfully distinct" water bodies. Friends of the Everglades Inc. v. South Florida Water Management District, 2006 WL 3635465 (S.D. Fla. 2006). NPDES Permit Requirements for Water Transfers
p. 644 (5th edition): In June 2008 EPA adopted a final rule excluding water transfers from §402's NPDES permit requirements. 73 Fed. Reg. 33697 (2008). EPA's rule defines an excluded water transfers as "an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal or commercial use." Under the rule, pollutants introduced to the water being transferred by the water transfer activity itself are still subject to NPDES permit requirements. Thus, if malfunctioning pumps contaminate the water being transferred with lubricants like oil and grease, they could be subject to NPDES permit requirements, but not if the pumping simply moved already polluted water to a new discharge site. In adopting the rule, EPA acknowledged that it was inconsistent with decisions like Catskill Mountains Chapter of Trout Unlimited., Inc. v. City of New York., 451 F.3d 77 (2d Cir. 2006), where the court held that New York City’s interbasin water transfers constitute an “addition of a pollutant” to a navigable water and thus require an NPDES permit under Section 402. But the agency argued that the CWA is ambiguous on this issue and thus the agency's rule should be afforded deference under Chevron. Environmental groups filed suit to challenge the rule. Definition of a Point Source
p. 644 (5th edition): In November 2007 EPA issued a final rule exempting from §402 permit requirements pesticides applied to surface waters for the purpose of controlling pests and pesticides unavoidably deposited on such waters as a result of aerial spraying operations. 71 Fed. Reg. 68483 (2007). EPA reasoned that pesticides generally are not “pollutants” except when they become wastes and that by the time they become wastes they no longer are present as a result of a “point source” discharge. EPA’s rule was struck down in January 2009 by the U.S. Court of Appeals for the Sixth Circuit. The National Cotton Council of America v. U.S. EPA, 553 F.3d 927 (6th Cir. 2009). The court rejected EPA’s claim that the rule was entitled to Chevron deference because it determined that there is no ambiguity under the Clean Water Act: pesticides are “pollutants” under the Act and, in light of the Supreme Court’s Miccosukee decision, their deposit into surface waters is from “point sources.” EPA has asked the Court to stay its decision for two years to give it time to develop a permit program for pesticides. Cooling Water Intake Structure Effluent Limitations – the Entergy decision
p. 644 (5th edition): In April 2009, the U.S. Supreme Court reversed a decision by the U.S. Court of Appeals for the Second Circuit that had prohibited EPA from using cost-benefit analysis when setting effluent limitations for cooling water intake structures. Section 316(b) of the Clean Water Act provides that such standards "shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." 33 U.S.C. §1326(b). In an opinion by future Supreme Court nominee Sonia Sotomayor, the Second Circuit had interpreted this provision to require the technology that achieves the greatest reduction in adverse environmental impacts at a reasonable cost to industry. However, the Supreme Court, in an opinion by Justice Scalia, disagreed. The Court concluded that whether it is reasonable to bear a particular cost can very well depend on the resulting benefits. It noted that the environmental plaintiffs had conceded that the EPA need not require that industry spend billions to save one more fish and found that there is "no statutory basis for limiting" the comparison of costs and benefits "to situations where the benefits are de minimis rather than significantly disproportionate." Entergy Corp. v. Riverkeeper, Inc. , 129 S.Ct. 1498, 1510 (2009). Section 401 Certification
p. 677 (5th edition): In Oregon National Desert Ass'n v. U.S. Forest Service, 550 F.3d 778 (9th Cir. 2008), environmental groups argued that the S.D. Warren decision should be interpreted to require a §401 certification before the Forest Service could issue grazing permits. However, the Ninth Circuit rejected this argument and held that "discharge" in §401 applies only to point sources of pollution and that grazing permits could be issued without a §401 certification because cows are not point sources. Total Maximum Daily Loadings (TMDLS)
p. 684 (5th edition): To be effective, TMDLs must be more than paper exercises - they must have an effect on permitting decisions. In Friends of Pinto Creek v. U.S. EPA, 504 F.3f 1007 (9th Cir. 2007), the Ninth Circuit held that EPA was prohibited from issuing a permit to allow the discharge of dissolved copper into an impaired creek covered by a TMDL unless there was a sufficient remaining load allocation to allow the discharge. However, the court rejected the claims by the plaintiff citizens group that no permit could be issued before the water body was restored. It held instead that it was sufficient if existing dischargers were on a compliance schedule that ultimately would achieve the applicable water quality standards. Avoiding Effluent Limits through a §404 Permit for “Fill” Material
p. 695 (5th edition): In the case below the Supreme Court addressed the relationship between the §404 permit program and §402 NPDES permits. Coeur Alaska, a Canadian mining company, sought to open a gold mine in southeast Alaska. Because EPA’s new source performance standard for “froth-flotation” gold mines, promulgated under §306, prohibited tailings discharges into surface waters, the company initially won approval for land disposal of them. However, after the price of gold dropped to $400 an ounce, Coeur Alaska sought a less expensive disposal method. It proposed using the tailings to fill a large portion of a lake, which the company argued made the discharges subject to the §404 permit process for discharges of fill material, rather than the §402 NPDES permit program. After the Ninth Circuit held that §404 could not be used to authorize discharges forbidden by §402, the U.S. Supreme Court granted review and issued the decision below. Coeur Alaska, Inc v. Southeast Alaska Conservation Council
2009 WL 1738643 (2009)KENNEDY, J., delivered the opinion of the Court. Petitioner Coeur Alaska plans to reopen the Kensington Gold Mine, located some 45 miles north of Juneau, Alaska. The mine has been closed since 1928, but Coeur Alaska seeks to make it profitable once more by using a technique known as “froth flotation.” Coeur Alaska will churn the mine’s crushed rock in tanks of frothing water. Chemicals in the water will cause gold-bearing minerals to float to the surface, where they will be skimmed off. At issue is Coeur Alaska’s plan to dispose of the mixture of crushed rock and water left behind in the tanks. This mixture is called slurry. Some 30 percent of the slurry’s volume is crushed rock, resembling wet sand, which is called tailings. The rest is water. The standard way to dispose of slurry is to pump it into a tailings pond. The slurry separates in the pond. Solid tailings sink to the bottom, and water on the surface returns to the mine to be used again. Rather than build a tailings pond, Coeur Alaska proposes to use Lower Slate Lake, located some three miles from the mine in the Tongass National Forest. This lake is small -- 800 feet at its widest crossing, 2,000 feet at its longest, and 23 acres in area. Though small, the lake is 51 feet deep at its maximum. The parties agree the lake is a navigable water of the United States and so is subject to the CWA. They also agree there can be no discharge into the lake except as the CWA and any lawful permit allow. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lakebed 50 feet -- to what is now the lake’s surface -- and will increase the lake’s area from 23 to about 60 acres. To contain this wider, shallower body of water, Coeur Alaska will dam the lake’s downstream shore. The transformed lake will be isolated from other surface water. Creeks and stormwater runoff will detour around it. Ultimately, lakewater will be cleaned by purification systems and will flow from the lake to a stream and thence onward. . . . The CWA classifies crushed rock as a “pollutant.” 33 U. S. C. §1362(6). On the one hand, the Act forbids Coeur Alaska’s discharge of crushed rock “[e]xcept as in compliance” with the Act. CWA §301(a), 33 U. S. C. §1311(a). Section 404(a) of the CWA, on the other hand, empowers the Corps to authorize the discharge of “dredged or fill material.” 33 U. S. C. §1344(a). The Corps and the EPA have together defined “fill material” to mean any “material [that] has the effect of … [c]hanging the bottom elevation” of water. 40 CFR §232.2. The agencies have further defined the “discharge of fill material” to include “placement of … slurry, or tailings or similar mining-related materials.” Ibid. In these cases the Corps and the EPA agree that the slurry meets their regulatory definition of “fill material.” On that premise the Corps evaluated the mine’s plan for a §404 permit. After considering the environmental factors required by §404(b), the Corp issued Coeur Alaska a permit to pump the slurry into Lower Slate Lake. . . . Section 402 gives the EPA authority to issue “permit[s] for the discharge of any pollutant,” with one important exception: The EPA may not issue permits for fill material that fall under the Corps’ §404 permitting authority. Section 402(a) states: “ Except as provided in … [CWA §404, 33 U. S. C. §1344], the Administrator may . . . issue a permit for the discharge of any pollutant, … notwithstanding [CWA §301(a), 33 U. S. C. §1311(a)], upon condition that such discharge will meet either (A) all applicable requirements under [CWA §301, 33 U. S. C. §1311(a); CWA §302, 33 U. S. C. §1312; CWA §306, 33 U. S. C. §1316; CWA §307, 33 U. S. C. §1317; CWA §308, 33 U. S. C. §1318; CWA §403, 33 U. S. C. §1343], or (B) prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.” 33 U. S. C. §1342(a)(1) (emphasis added). Section 402 thus forbids the EPA from exercising permitting authority that is “provided [to the Corps] in” §404. This is not to say the EPA has no role with respect to the environmental consequences of fill. The EPA’s function is different, in regulating fill, from its function in regulating other pollutants, but the agency does exercise some authority. Section 404 assigns the EPA two tasks in regard to fill material. First, the EPA must write guidelines for the Corps to follow in determining whether to permit a discharge of fill material. CWA §404(b); 33 U. S. C. §1344(b). Second, the Act gives the EPA authority to “prohibit” any decision by the Corps to issue a permit for a particular disposal site. CWA §404(c); 33 U. S. C. §1344(c). We, and the parties, refer to this as the EPA’s power to veto a permit. The Act is best understood to provide that if the Corps has authority to issue a permit for a discharge under §404, then the EPA lacks authority to do so under §402. Even if there were ambiguity on this point, the EPA’s own regulations would resolve it. Those regulations provide that “[d]ischarges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA” “do not require [§402] permits” from the EPA. 40 CFR §122.3. [The Southeast Alaska Conservation Council (SEACC) argues that] this regulation implies that some “fill material” discharges are not regulated under §404 -- else, SEACC asks, why would the regulation lack a comma before the word “which,” and thereby imply that only a subset of “discharges of … fill material” are “regulated under section 404.” The agencies, however, have interpreted this regulation otherwise. In the agencies’ view the regulation essentially restates the text of §402, and forbids the EPA from issuing permits for discharges that “are regulated under section 404.” 40 CFR §122.3(b); cf. CWA §402(a) (“[e]xcept as provided in … [§404], the Administrator may . . . issue a permit”). Before us, the EPA confirms this reading of the regulation. The agency’s interpretation is not “plainly erroneous or inconsistent with the regulation”; and so we accept it as correct. Auer v. Robbins, 519 U. S. 452, 461 (1997). The question whether the EPA is the proper agency to regulate the slurry discharge thus depends on whether the Corps of Engineers has authority to do so. If the Corps has authority to issue a permit, then the EPA may not do so. We turn to the Corps’ authority under §404. Section 404(a) gives the Corps power to “issue permits … for the discharge of dredged or fill material.” 33 U. S. C. §1344(a). As all parties concede, the slurry meets the definition of fill material agreed upon by the agencies in a joint regulation promulgated in 2002. That regulation defines “fill material” to mean any “material [that] has the effect of … [c]hanging the bottom elevation” of water -- a definition that includes “slurry, or tailings or similar mining-related materials.” 40 CFR §232.2. . . . Rather than challenge the agencies’ decision to define the slurry as fill, SEACC instead contends that §404 contains an implicit exception. According to SEACC, §404 does not authorize the Corps to permit a discharge of fill material if that material is subject to an EPA new source performance standard. But §404’s text does not limit its grant of power in this way. Instead, §404 refers to all “fill material” without qualification. Nor do the EPA regulations support SEACC’s reading of §404. The EPA has enacted guidelines, pursuant to §404(b), to guide the Corps permitting decision. 40 CFR pt. 230. Those guidelines do not strip the Corps of power to issue permits for fill in cases where the fill is also subject to an EPA new source performance standard. SEACC’s reading of §404 would create numerous difficulties for the regulated industry. As the regulatory regime stands now, a discharger must ask a simple question -- is the substance to be discharged fill material or not? The fill regulation, 40 CFR §232.2, offers a clear answer to that question; and under the agencies’ view, that answer decides the matter -- if the discharge is fill, the discharger must seek a §404 permit from the Corps; if not, only then must the discharger consider whether any EPA performance standard applies, so that the discharger requires a §402 permit from the EPA. Under SEACC’s interpretation, however, the discharger would face a more difficult problem. The discharger would have to ask -- is the fill material also subject to one of the many hundreds of EPA performance standards, so that the permit must come from the EPA, not the Corps? The statute gives no indication that Congress intended to burden industry with that confusing division of permit authority. The regulatory scheme discloses a defined, and workable, line for determining whether the Corps or the EPA has the permit authority. Under this framework, the Corps of Engineers, and not the EPA, has authority to permit Coeur Alaska’s discharge of the slurry. A second question remains: . . .Do EPA performance standards, and §306(e), apply to discharges of fill material? . . . SEACC claims the CWA §404 permit is unlawful because §306(e) forbids the slurry discharge. Petitioners and the federal agencies, in contrast, contend that §306(e) does not apply to the slurry discharge. . . . When the performance standard applies to a point source, §306(e) makes it “unlawful” for that point source to violate it: “[I]t shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.” CWA §306(e). SEACC argues that this provision, §306(e), forbids the mine from discharging slurry into Lower Slate Lake. SEACC contends the new source performance standard is, in the words of §306(e), “applicable to” the mine. Both the text of the performance standard and the EPA’s application of it to the discharge of mining waste from Lower Slate Lake demonstrate that the performance standard is “applicable to” Coeur Alaska’s mine in some circumstances. And so, SEACC reasons, it follows that because the new source performance standard forbids even minute discharges of solid waste, it also forbids the slurry discharge, 30% of which is solid waste. For their part, the State of Alaska and the federal agencies claim that the Act is unambiguous in the opposite direction. They rely on §404 of the Act. . . . First, they note that nothing in §404 requires the Corps to consider the EPA’s new source performance standard or the §306(e) prohibition. That silence advances the argument that §404’s grant of authority to “issue permits” contradicts §306(e)’s declaration that discharges in violation of new source performance standards are “unlawful.” Second, petitioners and the agencies point to §404(p), which protects §404 permitees from enforcement actions by the EPA or private citizens: “Compliance with a permit issued pursuant to this section … shall be deemed compliance, for purposes of [CWA §309] and [CWA §505] of this title, with [CWA §301], [CWA §307], and [CWA §403].” 33 U. S. C. §1344(p). Here again, their argument is that silence is significant. Section 404(p) protects the permitee from lawsuits alleging violations of CWA §301 (which bars the discharge of “any pollutant” “except as in compliance” with the Act), §307 (which bars the discharge of “toxic pollutants”); and §403 (which bars discharges into the sea). But §404(p) does not in express terms protect the permitee from a lawsuit alleging a violation of §306(e) or of the EPA’s new source performance standards. Section 404(p)’s silence regarding §306 is made even more significant because a parallel provision in §402 does protect a §402 permitee from an enforcement action alleging a violation of §306. CWA §402(k). In our view, Congress’ omission of §306 from §404, and its inclusion of §306 in §402(k), is evidence that Congress did not intend §306(e) to apply to Corps §404 permits or to discharges of fill material. If §306 did apply, then the Corps would be required to evaluate each permit application for compliance with §306, and issue a permit only if it found the discharge would comply with §306. But even if that finding were made, it is not clear that the §404 permitee would be protected from a suit seeking a judicial determination that the discharge violates §306. The CWA is ambiguous on the question whether §306 applies to discharges of fill material regulated under §404. On the one hand, §306 provides that a discharge that violates an EPA new source performance standard is “unlawful” -- without any exception for fill material. On the other hand, §404 grants the Corps blanket authority to permit the discharge of fill material -- without any mention of §306. This tension indicates that Congress has not “directly spoken” to the “precise question” of whether §306 applies to discharges of fill material. Chevron, 467 U. S., at 842. Before turning to how the agencies have resolved that question, we consider the formal regulations that bear on §§306 and 404. See Mead, 533 U. S., at 234-238. The regulations, like the statutes, do not address the question whether §306, and the EPA new source performance standards promulgated under it, apply to §404 permits and the discharges they authorize. . . . Rather than address the tension between §§306 and 404, the regulations instead implement the statutory framework without elaboration on this point. . . . The regulations do not give a definitive answer to the question whether §306 applies to discharges regulated by the Corps under §404, but we do find that agency interpretation and agency application of the regulations are instructive and to the point. Auer, 519 U. S., at 461. The question is addressed and resolved in a reasonable and coherent way by the practice and policy of the two agencies, all as recited in a memorandum written in May 2004 by Diane Regas, then the Director of the EPA’s Office of Wetlands, Oceans and Watersheds, to Randy Smith, the Director of the EPA’s regional Office of Water with responsibility over the mine (Regas Memorandum). The Memorandum, though not subject to sufficiently formal procedures to merit Chevron deference, see Mead, supra, at 234-238, is entitled to a measure of deference because it interprets the agencies’ own regulatory scheme. See Auer, supra, at 461. The Regas Memorandum explains: “As a result [of the fact that the discharge is regulated under §404], the regulatory regime applicable to discharges under section 402, including effluent limitations guidelines and standards, such as those applicable to gold ore mining … do not apply to the placement of tailings into the proposed impoundment [of Lower Slate Lake] . See 40 CFR §122.3(b).” The regulation that the Memorandum cites -- 40 CFR §122.3 -- is one we considered above and found ambiguous. That regulation provides: “[d]ischarges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA” “do not require [§402] permits.” The Regas Memorandum takes an instructive interpretive step when it explains that because the discharge “do[es] not require” an EPA permit, the EPA’s performance standard “do[es] not apply” to the discharge. The Memorandum presents a reasonable interpretation of the regulatory regime. We defer to the interpretation because it is not “plainly erroneous or inconsistent with the regulation[s].” Auer, supra, at 461. [The Court went on to note that the Memorandum addressed only closed bodies of water, that it emphasized that Coeur is not seeking to evade the requirements of EPA’s performance standard, that the Corps believed the discharge is in the public interest, and that it does not allow toxic pollutants to enter surface water. Thus, it concluded that the Memorandum was] “ a sensible and rational construction that reconciles §§306, 402, and 404, and the regulations implementing them, which the alternatives put forward by the parties do not. JUSTICE BREYER, concurring. As I understand the Court’s opinion, it recognizes a legal zone within which the regulating agencies might reasonably classify material either as “dredged or fill material” subject to §404 of the Clean Water Act, or as a “pollutant,” subject to §§402 and 306. Within this zone, the law authorizes the environmental agencies to classify material as the one or the other, so long as they act within the bounds of relevant regulations, and provided that the classification, considered in terms of the purposes of the statutes and relevant regulations, is reasonable. [Justice Breyer went on to express fears that applying §306’s NSPS to forbid use of any dirt or rock fill that contains trace elements of regulated chemicals when building a levee “may prove unnecessarily strict” and may be counterproductive. He acknowledged the dissenters fears that the decision could create a loophole to evade §402 requirements, but he concluded that there are adequate safeguards to prevent this, including EPA’s ability to veto §404 permits issued by the Corps]. JUSTICE SCALIA, concurring in part and concurring in the judgment. I join the opinion of the Court, except for its protestation, that it is not according Chevron deference to the reasonable interpretation set forth in the [Regas] memorandum . . . -- an interpretation consistently followed by both EPA and the Corps of Engineers, and adopted by both agencies in the proceedings before this Court. . . . Surely the Court is not adding to our already inscrutable opinion in United States v. Mead Corp., 533 U. S. 218 (2001), the irrational fillip that an agency position which otherwise does not qualify for Chevron deference does receive Chevron deference if it clarifies not just an ambiguous statute but also an ambiguous regulation. One must conclude, then, that if today’s opinion is not according the agencies’ reasonable and authoritative interpretation of the Clean Water Act Chevron deference, it is according some new type of deference -- perhaps to be called in the future Coeur Alaska deference -- which is identical to Chevron deference except for the name. . . I favor overruling Mead. Failing that, I am pleased to join an opinion that effectively ignores it. JUSTICE GINSBURG, with whom JUSTICE STEVENS and JUSTICE SOUTER join, dissenting. . . .The litigation before the Court thus presents a single question: Is a pollutant discharge prohibited under §306 of the Act eligible for a §404 permit as a discharge of fill material? In agreement with the Court of Appeals, I would answer no. The statute’s text, structure, and purpose all mandate adherence to EPA pollution-control requirements. A discharge covered by a performance standard must be authorized, if at all, by EPA. . . . No part of the statutory scheme, in my view, calls into question the governance of EPA’s performance standard. The text of §306(e) states a clear proscription: “[I]t shall be unlawful for any owner or operator of any new source to operate such source in violation of any standard of performance applicable to such source.” 33 U. S. C. §1316(e). Under the standard of performance relevant here, “there shall be no discharge of process wastewater to navigable waters from mills that use the froth-flotation process” for mining gold. 40 CFR §440.104(b)(1). The Act imposes these requirements without qualification. Section 404, stating that the Corps “may issue permits” for the discharge of “dredged or fill material,” does not create an exception to §306(e)’s plain command. Section 404 neither mentions §306 nor states a contrary requirement. The Act can be home to both provisions, with no words added or omitted, so long as the category of “dredged or fill material” eligible for a §404 permit is read in harmony with §306. Doing so yields a simple rule: Discharges governed by EPA performance standards are subject to EPA’s administration and receive permits under the NPDES, not §404. . . . The Court’s reading, in contrasts, strains credulity. A discharge of a pollutant, otherwise prohibited by firm statutory command, becomes lawful if it contains sufficient solid matter to raise the bottom of a water body, transformed into a waste disposal facility. Whole categories of regulated industries can thereby gain immunity from a variety of pollution-control standards. The loophole would swallow not only standards governing mining activities, but also standards for dozens of other categories of regulated point sources. . . .Would a rational legislature order exacting pollution limits, yet call all bets off if the pollutant, discharged into a lake, will raise the water body’s elevation? To say the least, I am persuaded, that is not how Congress intended the Clean Water Act to operate. In sum, it is neither necessary nor proper to read the statute as allowing mines to bypass EPA’s zero-discharge standard by classifying slurry as “fill material.” The use of waters of the United States as “settling ponds” for harmful mining waste, the Court of Appeals correctly held, is antithetical to the text, structure, and purpose of the Clean Water Act. Reversed and remanded. NOTES AND QUESTIONS1. How realistic are Justice Ginsburg’s fears that the decision could open a loophole allowing industries to escape §402 effluent limits by categorizing their discharges as “fill” subject to permitting under §404? Does it depend on the nature of the material discharged or the kind of water body into which the discharge occurs? Should it matter whether the “fill” serves no purpose other than to dispose of waste? See Kentuckians for Commonwealth, Inc. v. Rivenbaugh, 317 F.3d 425 (4th Cir. 2003) (Corps may issue §404 permit for valley-fill from mountain-top coal mining even if it serves “no purpose other than to dispose of excess overburden,” id. at 439). 2. In the wake of this decision, could EPA legally change its position and require that sources of such tailings discharges obtain permits under §402 instead of §404? Compare Justice Breyer’s concurrence with Justice Kennedy’s majority opinion. 3. In portions of the opinion not reproduced above, the majority sought to downplay the environmental consequences of its decision. Justice Kennedy emphasized that the lake might eventually recover even if the tailings initially killed most of the fish. Both Justices Kennedy and Breyer noted that EPA could still exercise its authority under §404(c) to veto any §404 permit issued by the Corps, an argument Justice Ginsburg countered by noting that EPA had vetoed only 12 permits in 36 years. Justice Kennedy also noted that while the tailings discharges into the lake did not require a §404 permit, EPA retains the authority to regulate under §402 the discharge of suspended solids from the lake into downstream waters. 4. The plunge in gold prices below $400/ounce that initially motivated Coeur Alaska to seek a cheaper disposal method has subsequently been reversed. When the Court decided the case on June 22, 2009, gold was selling for more than $920/ounce. 2. While Coeur Alaska initially had been prepared to dispose of its tailings on land, it abandoned this plan when the price of gold declined to $400 per ounce. However, at the time the case was decided by the Ninth Circuit, the price of gold had risen to $680 an ounce, suggesting that the case now is more about increasing the profit the foreign company will make from its mining operation. Shortly after the case was argued in the U.S. Supreme Court, the price of gold hit $1,000 per ounce. 3. In Kentuckians for Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425 (4th Cir. 2003), the Fourth Circuit had upheld a §404 permit issued to a mining company to dispose of overburden from surface coal mining, filling 6.3 miles of streams. The Ninth Circuit distinguished this decision by noting that: "In Kentuckians, the court addressed the issue of whether the Corps had authority under § 404 to permit valley fills from mountain-top coal mining 'when the valley fills serve no purpose other than to dispose of excess overburden from the mining activity.' 317 F.3d at 439. EPA had not promulgated a performance standard for mountain-top coal mining, so neither § 301 nor § 306 was implicated in that case. Id. at 445. Moreover, in that case, the Corps admitted that, under the 2002 definition, 'it was authorized to regulate discharges of fill, even for waste, unless the fill amounted to effluent that could be subjected to effluent limitations.'Id. (emphasis added). 486 F.3d at 653 n.15. Veto authority under CWA §404(c)
p. 698 (5th edition): EPA rarely has exercised its authority under §404(c) to veto the issuance of permits. In August 2008 EPA announced that it was vetoing its first §404 permit in sixteen years when it disapproved the Yazoo Backwater Area Pumps Project. 73 Fed. Reg. 54398 (2008). The project, originally authorized by Congress in 1941, was designed to protect a sparsely populated area of soybean fields from flooding by the Yazoo River. However, EPA concluded that it "would significantly degrade the critical ecological functions provided by approximately 67,000 acres of wetlands." The veto was only the thirteenth time the agency had exercised its veto authority. Wetland Mitigation
p. 701 (5th edition): In April 2008 EPA and the U.S. Army Corps of Engineers issued new regulations on wetland mitigation. 73 Fed. Reg. 19594 (2008). The regulations address situations where compensation is required because harm to wetlands cannot be avoided or minimized. They endorse three approaches to mitigation: compensatory mitigation by the permittee, mitigation banks, and in-lieu fee mitigation. They specify the fundamental components of each mitigation plan including ecological performance standards, monitoring requirements, adaptive management plans and financial assurances. Water Quality Trading
p. 705 (5th edition): In October 2008, EPA reported that more than 100 facilities had participated in water quality trading programs, but that 80% of the trades had occurred within a single trading program. EPA, Water Quality Trading Evaluation (2008). The agency explained that both legal and practical obstacles hampered expansion of trading programs: • The Clean Water Act does not mention water quality trading, and has several requirements that pose potential impediments to trading (e.g., anti-backsliding and anti-degradation requirements; permitting and public comment requirements). A significant amount of creativity and staff time is necessary to work around the complexities caused by statutory ambiguity. Over-burdened permit writers and cautious legal counsel may be unwilling or unable to make such an investment. • Water quality trading appears to be viable and sustainable only in locations where a narrow set of regulatory, economic, hydrologic, and geographic circumstances exist. Likewise, it may be limited to areas where program coordinators have both a high level of interest in trading and the talent needed to shepherd stakeholders through a challenging program development and implementation process. EPA Office of Water Report on Climate Change
p. 707 (5th edition): In September 2008 EPA's Office of Water issued a national program strategy for responding to climate change. EPA, Final National Water Program Strategy: Response to Climate Change. The report discusses the likely effects of climate change on water resources. These include increases in water pollution problems, more extreme water-related events, changes to the availability of drinking water supplies, waterbody movement and displacement, changing aquatic biology, and collective impacts on coastal waters. The also describes 40 actions that EPA's National Water Program intends to take to mitigate emissions of greenhouse gases and to adapt to climate change. | 
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