October 01, 2013

EPA’s Clean Water Act Section 404 Veto Authority

Lisa A. Kirschner

In April of this year, a three-judge panel for the U.S. Court of Appeals (D.C. Circuit) overturned the lower court and held that section 404(c) of the federal Clean Water Act (CWA) authorizes the Environmental Protection Agency (EPA) to retroactively veto a section 404 (dredge and fill) permit. Mingo Logan Coal Co. v. EPA, 714 F.3d 608 (D.C. Cir. 2013). The decision addressed the terms and conditions of a permit issued to the Mingo Logan Coal Mining Company (a subsidiary of Arch Coal, Inc. and referred to as Mingo Logan) for its Spruce Mine in West Virginia. The permit authorized the deposition of fill in streams associated with valley fill mining operations; the EPA veto occurred nearly four years after the section 404 permit issuance by the U.S. Army Corps of Engineers (Corps). Groups opposed to mountaintop mining herald the permit decision as momentous. In fact, its reach is potentially broader than the ongoing debate over Appalachian coal mining. To some, the court’s decision introduces substantial uncertainty into the section 404 permitting process in holding that EPA can retroactively veto a CWA permit, years after the Corps’ permit issuance (and subsequent to a company’s large investment in the permitted operations). The decision is sparking discussion in many business sectors, prompting legislative activity, and could be the harbinger of additional EPA efforts gauged at testing whether its CWA 404 veto authority is both preemptive as well as retroactive.

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