This week the Wall Street Journal published Exposing the EPA, an editorial that was very critical of EPA's consideration of a "pre-emptive" veto of the Pebble Mine Project, a proposal to develop America's largest copper and gold mine in Southwest Alaska. The Journal writes that EPA has been planning for several years to exercise its authority under the Clean Water Act (CWA) even before a permit has been filed with the US Amy Corps of Engineers (Corps of Engineers). This controversy highlights the problems inherent in the CWA's division of authority between the Corps of Engineers and EPA with respect to the administration of CWA Section 404's dredge and fill permitting authority. Under the CWA, the discharge of a pollutant into navigable waters is regulated by EPA under CWA Section 402 with regard to most point source discharges while the CWA Section 404 authorizes the Secretary of the Army, acting through the Corps of Engineers, to issue permits for the discharge of dredged and fill material into navigable waters. However, CWA Section 404(c) also authorizes EPA to veto the Corps of Engineers' specification of a disposal site specified in the permit.
The decisions in the recent Mingo Logan Coal Company case illustrate the EPA's complex authority to veto a CWA Section 404 permit specification "whenever" the EPA Administrator determines that the disposal of dredged and fill materials into a specified area will have an adverse environmental impact. In Mingo Logan, the Corps of Engineers issued a CWA Section 404 permit in 2007, but EPA then vetoed the specified disposal area in 2010. A lower court held that EPA had no authority to veto a permit after it was issued. The US Court of Appeals for the DC Circuit reversed the lower court, and the Supreme Court denied Mingo Logan's appeal. The Court of Appeals emphasized the fact that the text of the CWA did not place any temporal limits on EPA's ability to exercise its oversight of the Corps of Engineers. See 714 F 3d 608 (DC Cir 2013). However, it should be noted that the Court of Appeals stated that EPA's veto authority can only be issued "post-permit", after the Corps of Engineers has reviewed the permit application and designated the approved disposal area. Apparently, EPA believes that its powers are not so constricted by the law.