D.C. Circuit Upholds EPA Authority to Retroactively Veto CWA Section 404 Permits Issued by the U.S. Army Corps of Engineers

By Bob Holden and Jillian Marullo

On April 23, 2013, in a case of first impression, the D.C. Circuit Court of Appeals held that the EPA’s veto authority under section 404(c) of the Clean Water Act (CWA), 33 U.S.C.§ 134(c), “clearly and unambiguously” includes the power to retroactively revoke portions of a Section 404 dredge and fill permit issued by the U.S. Army Corps of Engineers (“Corps”). Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C. Cir. 2013). As provided in Section 404(a) of the CWA, Section 404 permits are more precisely permits “for the discharge of dredge and fill material into the navigable waters at specified disposal sites.” Section 404(c) of the CWA authorizes the EPA “to prohibit the specification (including the withdrawal of specification) of any defined areas as a disposal site, and . . . to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site whenever [it] determines” that the discharge will have an “unacceptable adverse effect” on environmental resources. The Mingo decision upheld the EPA’s withdrawal of disposal site specifications in a permit four years after the Corps had issued the permit.

The Mingo permit was issued in conjunction with one of the largest mountaintop coal mining projects ever authorized in West Virginia. In 2007, after a lengthy and litigious review process, the Corps, without objection from the EPA, issued a permit authorizing Mingo Coal to discharge material into three streams and their tributaries. Although the EPA had expressed its environmental concerns to the Corps during the permitting process, it did not exercise its veto power before or at the time of issuance. In fact, the EPA stated in an email to the Corps, “We have no intention of taking our [Mingo Coal permit] concerns any further from a Section 404 standpoint.”

In 2009, the EPA requested that the Corps revoke or modify the Mingo permit, but the Corps refused, finding no factors present requiring modification. The EPA then initiated its veto process through notice and comment action. In 2011, four years after the permit was issued, the EPA officially invoked 404(c) to veto the specification of two of the three streams as disposal sites in the Mingo permit, amounting to a nearly 88 percent reduction in the total authorized discharge area.

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