By Mia Robertshaw

The U.S. District Court for the District of Columbia has removed a layer of uncertainty for Clean Water Act section 404 permits.  On March 23, 2012, the Court held that the U.S. Environmental Protection Agency (EPA) exceeded its authority by purporting to invalidate an existing section 404 dredge-and-fill permit.  Nearly three years after the permit was issued, in a move unprecedented in the history of the Clean Water Act, EPA purported to withdraw the specification of disposal sites, thereby invalidating the permit which authorized discharge of spoil at those sites.  In Mingo Logan Coal Company, Inc. v. U.S. EPA, the Court concluded that EPA’s asserted authority to unilaterally modify or revoke a duly issued permit is not conferred by the statute, and is contrary to the language, structure, and legislative history of section 404 as a whole.[1] 

Mingo Logan Coal Company, Inc. held a 404 permit issued by the U.S. Army Corps of Engineers (Corps) in January 2007, after environmental review of Mingo Logan’s project.  The permit authorized Mingo Logan to discharge fill material from its coal mine into local water courses.  During the project approval process, EPA expressed concerns about potential adverse impacts of the project, but established that EPA intended to work with the Corps to address these concerns. 

Almost two years after the Corps issued the permit, EPA requested that the Corps suspend, revoke, or modify the permit because of downstream water quality impacts that EPA asserted the permit did not adequately address.  The Corps rejected the request, finding no grounds to suspend, revoke, or modify the permit.  In January 2011, EPA issued a Final Determination (links to PDF) to withdraw the specification of certain water courses as a disposal site for dredged or fill material in connection with the project. 

Section 404 allows the Corps to issue permits for discharges into navigable waters only at “specified” sites.  EPA may prohibit or restrict the specification of an area as a disposal site if EPA determines that the discharge will have certain unacceptable adverse environmental impacts.[2] 

Before issuing its Final Determination in this matter, EPA had never vetoed a section 404 permit after a permit had been issued in any matter.  Mingo Logan challenged EPA’s purported withdrawal of the specification of disposal sites.  The Court granted summary judgment in Mingo Logan’s favor, vacating the Final Determination. 

EPA maintained that section 404(c) authorized EPA to prohibit the use of certain disposal sites at any time.  The Court found this interpretation illogical and impractical, and found that “[i]t is further unreasonable to sow a lack of certainty into a system that was expressly intended to provide finality.”[3]  Thus, while EPA may veto the use of certain disposal sites, it must do so before the Corps issues the permit.

In Mingo Logan Coal Co., the Court rejected what could have been a significant source of uncertainty for Clean Water Act section 404 permits.  It is possible EPA will appeal the ruling, as several environmental groups, including the Sierra Club, Earthjustice, and regional Appalachian groups, urge.

[1]  Mingo Logan Coal Co., Inc. v. U.S. EPA, 2012 U.S. Dist. LEXIS 39532. 
[2]  33 U.S.C. § 1344(c) (“The [EPA] Administrator is authorized to prohibit the specification (including withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearing, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas . . . , wildlife, or recreational areas.  Before making such determination, the Administrator shall consult with the Secretary [of the Army]”).
[3]  Mingo Logan Coal Co., Inc. v. U.S. EPA, supra at 58-59.