U.S. Supreme Court
This case concerns the activity of a mining company which received a section 404 permit from the Army Corps for the discharge of fill material. The Ninth Circuit Court of Appeals vacated that permit, because the company did not satisfy an existing effluent limitation guideline (ELG) covering certain mining processes. NAHB believes this decision was incorrect, because ELGs are a term and condition unique to permits issued under the Section 402 program, and should not be attached to a section 404 Corps permit. The U.S. Supreme Court granted review of the Ninth Circuit's decision. Because NAHB's members frequently obtain both types of permits, and because the Ninth Circuit's decision could have great impact on the requirements necessary to allow discharges of pollutants, NAHB weighed in with an amicus brief. NAHB's brief urged the Supreme Court to reverse the Ninth Circuit, and argued that section 402 permits cannot be burdened with requirements for section 404 permits, and vice versa.
NAHB filed an amicus brief with the U.S. Supreme Court on Sept. 24, 2008. In a rare move, the Court requested additional briefing on an issue that was raised in NAHB's amicus brief. The supplemental brief was filed May 15, 2009.
On June 22, 2009, the Court issued a 6-3 decision, written by Justice Kennedy, that accepted NAHB's position from its amicus brief. Justice Kennedy wrote that the Clean Water Act is "best understood to provide that if the Corps has authority to issue a permit ... then the EPA lacks authority to do so." Further, Justice Kennedy recognized that "[a] two-permit regime would cause confusion, delay, expense, and uncertainty in the permitting process." Accordingly, there is no room for ELGs, promulgated by EPA, to apply in a Corps-issued permit. This is a solid win for NAHB.