Published: January 26, 2009
SUMMARY OF ARGUMENT
The Clean Water Act, one of the nation s most vital environmental laws, regulates the discharge of pollutants into waters of the United States. It does so in large part through two permit programs. First and most comprehensive, section 402 requires a National Pollutant Discharge Elimination System ( NPDES ) permit for discharges of pollutants by industrial and municipal sources. 33 U.S.C. § 1342. Second, section 404 requires a permit for discharges of dredged or fill material, which often involves physical alterations to water bodies, such as the filling of wetlands or other waters to facilitate construction.
33 U.S.C. § 1344. In essence, section 404 is an exception to the ordinary rule of NPDES permitting for a very narrow subset of discharges to water those that may physically alter the aquatic environment in an adverse way. Unless a discharge is permitted under one of these programs, it is prohibited. 33 U.S.C. § 1311(a).
The differences between the two Clean Water Act permit programs are significant, reflecting their very different purposes. The NPDES program works to protect the nation s waters from the disposal of polluted waste streams. It does so by incorporating industry-specific technology-based effluent limitations designed to reduce and eventually eliminate the discharge of pollution. Importantly, the U.S. Environmental Protection Agency ( EPA ) develops effluent limitation guidelines to establish technologybased requirements for all categories and classes of pollutant discharges. States, which typically issue individual NPDES permits under federal law, must translate these guidelines into effluent limitations and must include any other protections necessary to ensure compliance with state water quality standards. The statute expressly requires periodic review and updating of available controls, effluent limitations, and individual permits to ensure that pollution loading continues to decrease as technology improves.
Section 404 dredge and fill material permits, on the other hand, ordinarily target the physical impairment of rivers, wetlands, and other waters and the destruction of aquatic habitat, rather than end-ofthe- pipe discharges. Implemented primarily by the U.S. Army Corps of Engineers ( Corps ) with minimal EPA oversight and little state involvement, dredge and fill permits cover what are typically one-time construction activities. For this reason, the section 404 program does not focus on effluent limitations and control technologies, but instead addresses ecological impacts by requiring project proponents to first avoid, then minimize, and then mitigate any project impacts. Because section 404 is not intended to address ongoing pollution discharges, dredge and fill permits also do not include the kind of monitoring, reporting, review, and renewal provisions that lie at the heart of the technology-forcing NPDES program. Thus, while the section 404 permit program plays a vital role in protecting the nation s waters from the harmful effects of discharges that convert water bodies to dry land, it simply is not equipped and was never intended to displace the regulation of industrial pollutants under section 402.
The Corps and Petitioners position here contravenes this basic statutory architecture by authorizing what is self-evidently an ongoing discharge of industrial pollutants under the section 404 dredge and fill permit program. The proposed new Kensington Mine gold processing facility will discharge an estimated 210,000 gallons of polluted wastewater every day into a sub-alpine lake in the Tongass National Forest.
This wastewater stream is the result of a frothflotation process that uses a variety of conditioners and frothing agents to separate gold from the rest of the mined material. Joint Appendix ( JA ) 192a. Once the gold is extracted, the resulting waste stream is a slurry a suspension of solids in water consisting of chemical additives, heavy metals such as aluminum, copper, lead and mercury, and crushed rock debris.
With a pH of 10, this waste slurry will kill all fish and most other aquatic life in Lower Slate Lake. Id. at 197a, 206a. The toxicity resulting from the discharge may well preclude the lake from ever again providing a suitable habitat for macroinvertebrates, which are critical for supplying nutrients to fish. Id. at 199a. Thus, the extent to which aquatic life could be restored eventually is unclear. Id. at 522a. To avoid these kinds of harms, and after evaluating the availability of treatment alternatives, EPA in 1982 established a zero-discharge standard of performance for wastewater from new froth-flotation gold processing operations like Kensington Mine. 40 C.F.R. § 440.104(b)(1). If reversed, this case would allow the facility to circumvent EPA s long-standing nodischarge standard.
The implications of Petitioners and the Corps statutory interpretation in this case extend well beyond the gross pollution of the Lower Slate Lake and the complete destruction of its ecosystem. Many industries currently discharge polluted wastewater containing sediments or other settlable solids that might alter the bottom elevation of the receiving water. Indeed, EPA has established technology-based standards for total suspended solids from many industrial categories. Under Petitioners reading of the Clean Water Act, these sources could well fall out of the NPDES program altogether by virtue of the solids content in their waste streams, even when those wastes contain significant levels of harmful industrial pollutants. Such a result would violate the plain reading of the Clean Water Act, dramatically undercut the Act s fundamental structure, and mark a radical departure from more than 30 years of agency practice. Moreover, it could significantly alter the states important historical role in regulating local water quality by controlling industrial discharges. The Court should not embrace an interpretation of the Clean Water Act that both subverts the plain language of the law and threatens to upend the successful federal-state partnership that has moved the nation s waterways ever closer to the statutory goals of swimmable and fishable. See 33 U.S.C. § 1251(a)(2).