Corps Says 6th Circuit Ruling Underscores CWA 404 Permitting Discretion

摘要

A recent appellate ruling rejecting an environmentalist challenge to a Michigan hardrock mine sidestepped questions about whether groundwater falls under the reach of the Clean Water Act (CWA), though the Army Corps of Engineers says the ruling offers a precedential statement of its discretion in administering its dredge-and-fill permitting program. The Department of Justice (DOJ) on behalf of the Corps in November asked the U.S. Court of Appeals for the 6th Circuit to publish its ruling in Huron Mountain Club v. Army Corps of Engineers, et al., upholding a lower court's decision not to issue an injunction of mining activities at the Eagle Mine because it did not obtain a CWA section 404 permit. But in a Nov. 19 order, the court without comment declined the request, leaving the decision unpublished. Courts in future cases can still rely on and cite the Huron Mountain Club ruling, though as an unpublished opinion it would carry less weight and would not be binding.