On April 23, 2013, the U.S. Court of Appeals for the District of Columbia (the “Court of Appeals”) held that the United States Environmental Protection Agency (the “U.S. EPA”) has the authority to retroactively disapprove of permits issued by the U.S. Army Corps of Engineers (the “Corps”) under section 404 of the Clean Water Act (“CWA”) (“Section 404 Permits”). See Mingo Logan Coal Co. v. U.S. EPA, 2013 WL 1729603 (C.A.D.C.), 76 ERC 1213 (“Mingo”).

By way of background, the CWA provides that, “the discharge of any pollutant by any person shall be unlawful” except as in compliance with specifically enumerated CWA provisions, including Section 404. See 33 U.S.C. § 1311(a). Section 404 Permits are issued by the Corps in order to authorize the discharge of dredged or fill material into waters of the United States.

In Mingo, the Mingo Logan Coal Company applied to the Corps for a Section 404 Permit in order to receive approval to discharge dredged or fill material from a mountain-top coal mine in West Virginia into three streams and their tributaries. The Corps, without formal objection from the Administrator of the U.S. EPA, issued the permit to Mingo Logan Coal Company, approving the requested discharges.

Four years later, pursuant to CWA Section 404(c), U.S. EPA invoked its authority to “withdraw” the authorization to discharge into two of the streams, thereby prohibiting Mingo Logan Coal Company from discharging into them. U.S. EPA wrote to the Corps requesting it “use its discretionary authority . . . to suspend, revoke or modify the permit issued authorizing Mingo Logan Coal Company to discharge dredged and/or fill material into waters of the United States in conjunction with the construction, operation, and reclamation of the Spruce Fork No. 1 Surface Mine,” based on “new information and circumstances ... which justif[ied] reconsideration of the permit.” Letter from EPA, Region III to Corps, Huntington Dist., at 1 (Sept. 3, 2009).

When the Corps refused to suspend, revoke or modify Mingo Logan Coal Company’s permit, U.S. EPA issued a public notice of a determination to restrict or prohibit the discharge of dredged and/ or fill material at the Spruce No. 1 Mine project site pursuant to its authority under Section 404(c) of the Clean Water Act and 40 C.F.R. Part 231.

In response, Mingo Logan Coal Company filed a court action in the United States District Court of the District Court of Columbia (the “District Court”) challenging U.S. EPA’s withdrawal of approval, on the following grounds: (1) the U.S. EPA lacks statutory authority to withdraw site specification after a permit has issued and (2) the U.S. EPA’s decision to do so was arbitrary and capricious in violation of the Administrative Procedure Act (“APA”). The District Court granted summary judgment to Mingo Logan Coal Company on the first ground without reaching the second.

In April of 2013, the Court of Appeals reversed the District Court’s decision, focusing on whether the U.S. EPA had the authority under section 404(c) of the CWA to withdraw its specification of the disposal site after the Corps had already issued a permit under Section 404(a). The Court of Appeals found that EPA may unilaterally veto disposal sites formerly approved through a Corps issued Section 404 permit. Referencing the “plain language” of the CWA, the Court of Appeals noted that Congress granted U.S. EPA a broad environmental “backstop” authority over the Corps’ discharge site selection in subsection 404(c). The Court of Appeals then remanded the case back to the District Court for consideration, because the District Court did not address the merits of Mingo Logan’s APA challenge to the U.S. EPA’s actions.

In response, on June 7, 2013, Mingo Logan Coal Company filed a petition at the Court of Appeals for rehearing en banc, which, if granted, would have the case heard by all of the judges on the Court of Appeals. As of the date this article, the parties were in the process of briefing of whether the case would be entitled to a rehearing. As a result, the Court has not yet issued a decision on Mingo Logan Coal Company’s petition for rehearing

Until the Court renders its final decision on the merits, it is unclear how the Mingo decision will affect the Corps’ 404 permitting process.