The D.C. Circuit Court of Appeals has determined that the Clean Water Act (CWA) allows the U.S. Environmental Protection Agency (EPA) to rescind a dredge-and-fill permit issued by the U.S. Army Corps of Engineers (Corps) under section 404, even years after the permit issued. Mingo Logan Coal Co. Inc. v. EPA, No. 12-5150 (D.C. Cir. 4/23/13).

In dispute was a section 404 permit for discharges to streams and wetlands as part of a so-called “valley fill” from the operation of a mountaintop mine in West Virginia. Acting on the permittee’s 1999 permit application, the Corps issued a draft environmental impact statement (EIS). EPA objected to the draft EIS, stating that “mountaintop mining yields significant and unavoidable environmental impacts” that the EIS did not consider. The Corps proceeded to issue the permit in 2007. In 2009, EPA asked the Corps to reconsider two of the specified disposal sites under the permit, but the Corps determined that no new information compelled suspension, modification or revocation of the permit. In 2010, EPA took action to directly withdraw the specifications of two waterways from the permit.

The permittee appealed EPA’s withdrawal to a federal court in the District of Columbia, arguing that EPA did not have statutory authority under the CWA to withdraw portions of the permit after it had been issued. The court agreed and granted the permittee summary judgment. The D.C. Circuit, however, found the statute unambiguous in granting EPA a right to deny, restrict or withdraw specification of any area as a disposal site with “no temporal limit.” Holding that Congress intended to “confer on EPA a broad veto power extending beyond the permit issuance,” the appeals court overturned the dismissal and remanded for further proceedings, because the court below had not considered the permittee’s argument that EPA’s withdrawal was arbitrary and capricious.