Summary
The D.C. Circuit held that the Environmental Protection Agency has authority under Clean Water Act section 404(c) to withdraw a disposal-site specification after the Army Corps of Engineers has issued a permit. The court reversed the district court's contrary ruling and remanded for consideration of the permit holder's separate Administrative Procedure Act challenge.
Topics
Practice areas
Questions Presented
- Whether Clean Water Act section 404(c) authorizes EPA to withdraw or prohibit a disposal-site specification after the Army Corps of Engineers has issued a section 404 permit.
- Whether EPA's Final Determination was arbitrary and capricious under the Administrative Procedure Act.
Holdings
- Clean Water Act section 404(c) unambiguously authorizes EPA to prohibit, deny, restrict, or withdraw a disposal-site specification after the Corps has issued a permit, whenever EPA determines that the discharge will have an unacceptable adverse effect on the statutorily identified environmental resources.
Key quotations
“Section 404 imposes no temporal limit on the Administrator’s authority to withdraw the Corps’s specification but instead expressly empowers him to prohibit, restrict or withdraw the specification “whenever” he makes a determination that the statutory “unacceptable adverse effect” will result.” (at 610)
“Thus, the unambiguous language of subsection 404(c) manifests the Congress’s intent to confer on EPA a broad veto power extending beyond the permit issuance.” (at 610)
“For the foregoing reasons, we reverse the district court insofar as it held that EPA lacks statutory authority under CWA section 404(c) to withdraw a disposal site specification post-permit.” (at 617)
Factual background
Mingo Logan's predecessor applied for a Clean Water Act section 404 permit to discharge material from a West Virginia mountaintop coal mine into several streams and tributaries. The Army Corps of Engineers issued a permit in 2007 authorizing disposal into three streams, including Pigeonroost Branch and Oldhouse Branch, and EPA did not initially invoke its section 404(c) authority. After the permit issued, EPA relied on new information and concerns about downstream water-quality degradation to issue a Final Determination withdrawing the specifications of Pigeonroost Branch, Oldhouse Branch, and their tributaries as disposal sites.
Procedural history
Mingo Logan challenged EPA's Final Determination withdrawing the specification of two streams and their tributaries as disposal sites for its Spruce No. 1 Surface Mine. On cross-motions for summary judgment, the United States District Court for the District of Columbia granted judgment to Mingo Logan solely on the statutory-authority issue and did not reach Mingo Logan's Administrative Procedure Act arbitrary-and-capricious challenge. The D.C. Circuit reversed on the statutory issue and remanded for the district court to address the APA challenge in the first instance.
Remand instructions
The district court must address in the first instance Mingo Logan's Administrative Procedure Act challenge to the merits of EPA's Final Determination.