U.S. Supreme Court Upholds § 404 Permit Issued By the Army Corps of Engineers

On June 22, 2009, the U.S. Supreme Court decided an important environmental case: Coeur Alaska v. Southeast Alaska Conservation Council. In Coeur Alaska, a divided Court ruled that the U.S. Army Corps of Engineers has the exclusive authority to issue Section 404 permits for the discharge of dredge or fill dirt into waterways. More specifically, the Court ruled by a 6-3 majority that Coeur’s discharge of dredge and fill material did not require two permits under the Clean Water Act.

The plaintiff environmental groups argued that a land owner must obtain two permits – one from the Corps and another from the Environmental Protection Agency or a state delegated with permitting authority. The majority opinion clarified that effluent limitation guidelines (ELGs) and performance standards promulgated by the EPA for Section 402 permits are not applicable to a permit issued under Section 404 by the Corps for the discharge of fill material.

Justice Anthony Kennedy wrote for the majority that “a two-permit regime would cause confusion, delay, expense and uncertainty in the permitting process.” Thus, the majority concluded that “the Corps was the appropriate agency to issue the permit and that the permit is lawful.”

This decision has significant implications for the business and development community because it clearly distinguishes the permitting authority of the EPA from that of the Corps. If you have any questions concerning this opinion, please contact Marcia M. Ernst at 404-815-3673 or

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