A federal court in the District of Columbia has ruled that EPA exceeded its authority under the Clean Water Act (CW A) when the agency decided to set aside 79 mining permits for stricter scrutiny as part of the agency’s enhanced review of the permits. Nat’l Mining Ass’n v. Jackson, No. 10-1220 (D.D.C. 10/6/11). According to the court, EPA revised its permitting process and effectively engaged in rulemaking without following the Administrative Procedure Act (APA).

The lawsuit challenged EPA’s issuance in June 2009 of two separate memoranda that outlined the formal details of a process for enhanced review of certain mining permits. The first memorandum, the MCIR Assessment, set forth the factors EPA intended to use to screen and evaluate pending permit applications in determining which permit applications required further coordination with the U.S. Army Corps of Engineers (Corps). The second memorandum detailed the EC Process, which, according to plaintiffs, is a “burdensome review that is wholly separate from the process outlined in Section 404 of the CW A, the Corp’s implementing regulations” and guidance documents issued by EPA and the Corps. The court agreed with plaintiff, holding that EPA’s actions were “unlawful” and are “hereby set aside.”