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Bridge Over Muddy Waters: SWANCC, Stormwater, TMDLS, SPCC, and Section 404 Permitting

Richard E. Schwartz, Ellen B. Steen, Kirsten L. Nathanson, Bridget E. Littlefield, Proceedings of 49th Annual Rocky Mountain Mineral Law Institute (2003)

The U.S. Supreme Courts 2001 decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) “muddied the waters”—now no one is sure which waters are covered by the Clean Water Act. The U.S. Environmental Protection Agency (EPA), the Army Corps of Engineers (Corps), the courts, and Congress are trying to define the scope of jurisdictional waters in the aftermath of SWANCC. That still-murky process, which we discuss at length below, is in midstream.

Recent court decisions have raised other issues—one declared that “deep ripping” of a wetland is a “discharge of a pollutant.” Others held that coalbed methane production groundwater is a “pollutant,” and that aerial spraying of pesticides is a “point source” that requires a national pollutant discharge elimination system (NPDES) permit if the spray drifts into a navigable water.

Mountaintop mining has been preserved. EPA and the Corps jointly issued regulations classifying mining overburden deposited in valleys as “fill material” whose discharge can be authorized by a section 404 “dredge and fill” permit. A federal district courts decision enjoining the regulations and banning all valley fills within its jurisdiction was overturned by the court of appeals.

Clean Water Act “general permits” are under attack by environmental groups contending that they fail to provide for adeq