In Kalur v. Resor, 1 ELR 20637 (D.D.C. Dec. 21, 1971), the district court held that the Refuse Act Permit Program (RAPP), as implemented in regulations promulgated by the Army Corps of Engineers, conflicted with the 1899 Refuse Act and with the National Environmental Policy Act of 1969. [See ELR 46301 for the Corps' RAPP regulations; ELR 41141 for the 1899 Refuse Act; ELR 41009 for NEPA; and 1 ELR 10009, 1 ELR 10029, and 1 ELR 10133 for previous ELR Comments on RAPP.] The Corps had proposed to issue permits for discharges into both navigable and non-navigable streams, but the court held that the Refuse Act, while forbidding any discharge into navigable streams or their tributaries, allowed the Corps to issue permits only for discharges into navigable streams. The court further held that the Corps could not exempt RAPP from the procedural requirements of NEPA. Finally, the court held that the Corps could not pass its responsibilities under NEPA to the Environmental Protection Agency, but must itself engage in the balancing operation that NEPA requires.

The plaintiffs in Kalur were explicitly motivated by a belief that RAPP would slow down any attempt to reach the goal of clean water for the nation. In an article¹ describing the suit, one of the plaintiffs traced the history of the enforcement of the Refuse Act that he characterized as "the only federal law which environmentalists can use in the fight to restore America's waterways." The guidelines the Department of Justice first issued, then withdrew, which would have authorized United States Attorneys to sue under the Act only when violations were accidental rather than continuous, were highlighted. These guidelines, the author suggested, were motivated by "increasingly frequent prosecution of . . . corporate [political] supporters." The author concluded: