EPA Has Independent Authority to Invalidate Section 404 Permits Issued by Army Corps of Engineers

Mingo Logan Coal Company v. U.S. Environmental Protection Agency

The United States Court of Appeals for the District of Columbia has decided that the U.S. Environmental Protection Agency is empowered by the federal Clean Water Act to unilaterally invalidate a Section 404 permit issued by the Army Corps of Engineers, even if the Corps is unwilling to take that step.

The case stemmed from a Section 404 permit issued by the Corps in 2007. The Corps’ permit authorized a coal mining company to discharge material into four West Virginia streams. Two years after the permit issued, the EPA asked the Corps to use its discretionary authority to revoke the permit pursuant to 33 C.F.R., § 325.7, based on the operation’s potential to degrade downstream water quality. The Corps declined the invitation, prompting the EPA to initiate a process in 2010 which culminated in the EPA’s withdrawal of the permit.

In the ensuing litigation, the company challenged the EPA’s authority to withdraw a permit issued by the Corps. The company asserted that the EPA’s power to invalidate the permit ended once the Corps had actually issued the permit. The District of Columbia disagreed. The court noted that the Clean Water Act imposed no temporal limit on the EPA’s power to restrict the Corps’ permit authority. Rather, Section 404 expressly allowed the EPA to step in “whenever” the EPA Administrator decided that the permitted activity would result in an “unacceptable adverse effect.” (33 U.S.C., § 1344(c).)

The court observed that the EPA had consistently asserted the same interpretation of its statutory authority for more than 30 years. Interestingly, the court noted that the Corps – despite its refusal to abide by the EPA’s initial request to withdraw the permit – joined the EPA in the litigation, thus making it clear that the Corps supported the EPA’s position.

The decision highlights the pitfalls that remain after the Corps issues a Section 404 permit, particularly if the permit is granted over the EPA’s objections or concerns. Permittees must be mindful of the power to revoke held by the EPA as well as the Corps.

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