Healy Enviro Law Fall 2012.docx

F jurisdiction of cwa hot issue 37 i 404 permit

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f. Jurisdiction of CWA (hot issue) 37
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i. §404 Permit – Issued by Army Corps (Agency not traditionally worried about environmental protection) 1. This permit is required before person may discharge “dredged of fill material” into CWA waters . 2. 404(b) gives EPA authority to define standards for granting 404 permits in consultation with corps. 3. Regulations generally provide for a consideration of multiple factors including a balance of costs and benefits AND consideration of “practicable alternatives” to granting permit. 4. EPA may veto 404 (rarely do though) under 404(c), if the permit will result in an “unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife or recreation areas.” 5. Under some circumstances, filling activities may be pursued under a general §404(e) permit (don’t need individual permit if you meet these requirements) or an exemption §404(f). a. EPA has suspended NWP 21, they’ve been more active in not granting these permits. 6. Coeur Alaska , 129 S. Ct. 2458 (2009) a. Gold mine with enormous amount of tailings would literally fill an entire lake. b. Army Cops allowed 404 permit (no EPA veto). c. Environmentalists sued arguing that this should be an NPDES permit (§306). d. Ct says statute is ambiguous when the same conduct falls under NPDES and 404 permits, thus EPA gets deference. ii. Scope of CWA Waters 1. CWA covers the “navigable waters” which is defined as “the waters of the United States. 2. Historically, the scope of waters was made in connection to effect on I/C. 3. Riverside Bayview held that the Corps did possess §404 jurisdiction over wetlands that abutted a navigable water. Adjacent waters were ok. 4. SWANCC v. Army Corps – the waters were totally intrastate, but home to migratory birds and water fowl. Court held that there is no authority with wholly intrastate waters. 5. Rapanos (2006), Plurality, MI D’s wetlands were miles from open water. a. Scalia uses dictionary to hold that CWA waters refers to relatively permanent, standing or continuously flowing bodies of water, 38 Permit program designed to regulate the discharge of dredge or fill material into US
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i. Scalia Test Regarding wetlands: they are within CWA scope only when they are: 1. Adjacent to a CWA water and 2. There is a continuous connection to the surface water. b. Kennedy Approach : wetlands are within CWA if there is a significant nexus to other waters. c. Stephens – give EPA deference her. d. With plurality, a water meeting any 2 of these 2 tests is within the CWA’s jurisdiction. V. RCRA [Resource Conservation and Recovery Act] ( see outline handout) a. Quick facts: i. Ex ante (prospective) regulation that looks forward. It’s designed to regulate solid, hazardous wastes from cradle to grave. ii. Enacted in 1976. iii. Substantial amendment in 1984 to focus statute on regulation of handling disposal of hazardous wastes.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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