Wetlands

Question 1

Section 404

Answer 1

• doesn’t have a tech-based standard - EPA has guidelines
• guidelines say no permit if there’s a practicable alternative (effectiveness weakens over time though

Also no permit if:
- violates any state water q standards, toxic effluent standard, or jeopardizes an endangered/threatened species
- cause or contribute to significant degradation to waters of US

Need to minimize potential adverse impacts as part of the permit process

Question 2

404(c)

Answer 2

• EPA gets veto power over 404 permits
• doesn’t happen all that often but sometimes EPA can use it to get conditions put on the permit

Question 3

Mingo Logan Coal Company v. EPA

Answer 3

• 2013
  Obama EPA vetoed a major mining project almost two yrs after granted-> DC Circuit upheld cause said statute doesn’t impose a time limit on the veto

Question 4

404(e)(1)

Answer 4

• allows for general permits on nationwide basis if similar in nature, only minimal adverse env effects, + only minimal cumulative adverse effect on env

Question 5

404(g)

Answer 5

• allows delegation of permit program to states unless its dredged or fill activity involving trad nav waters
• references wetlands

Question 6

Controversies for Wetlands

Answer 6

• Draining Wetlands
• NationwidePermits
• Exemption “Border” Issues: “Normal” Farming
• “Practicable Alternative” Analysis
  – Available
  – Water Dependence - National Wildlife Federation v. Whisler (CA8 1994) (boat access for house development water dependent)
  – Timing of Alternative Availability: Before/Now -> Bersani v. Robichaud (CA2 1988) (availability determined at time of market entry, which favors later entrants and does not bar 404 permit)
• Delaying Filling Rather than Prohibiting Filling
• Mitigation Banking: Ecological Effectiveness?

Question 7

Coeur Alaska

Answer 7

• 2009
• gold mining co trying to figure out how to dispose of slurry created in mining process
• were gonna do 402, but wouldn’t allow any discharge in water for this kind of mine -> too costly -> they look to 404 + call the slurry fill material
• SCOTUS defers to EPA and says this is okay

Question 8

Coeur Alaska Ginsburg Dissent

Answer 8

• text, structure, and purpose of CWA makes clear this shouldn’t be allowed

Question 9

Coeur Alaska Qs Presented

Answer 9

• Whether Section 404 contains an implicit exception from Corps jurisdiction if the material being discharged is subject to an EPA new source performance standard
• Whether, if the Corps retains jurisdiction, the Corps must apply EPA’s NSPS