Recent federal court decision strips EPA of its veto power on 404 permits

Posted: Oct 23, 2017

On March 23, 2012 the Federal District Court in D.C. issued a decision that reinstated a Section 404 permit for the Spruce No.1 mountaintop removal mine in West Virginia that had been "vetoed" by the EPA. For those of us who have been following the battle over section 404 and mountaintop removal mining, this case has special importance. But I am sure this decision will be of interest to anyone who follows the Clean Water Act.

If the decision in this case is correct then my understanding of Section 404(c) is turned upside down. While 404(c) does not use the word "veto" I have always read the language of the CWA effectively to give EPA a veto over the Corps’ section 404 permits. The key language of section 404 provides as follows:

(a) The Secretary may issue permits … for the discharge of dredged or fill material into the navigable waters at specified disposal sites....

(b) Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary (1) through the application of guidelines developed by the Administrator,

(c) The [EPA] Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification... whenever he determines … that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.

So, if the EPA prohibits the specification of a disposal site that would seem to render the permit, which seems entirely dependent on the specification of a disposal site, invalid. This was not, however, the conclusion reached by Judge Amy Berman Jackson, a recent Obama appointee to the Court. Rather, the court found that “whatever section 404(c) means, it only talks about prohibiting, restricting, or withdrawing a specification, and it does not give EPA any role in connection with permits.” Slip op. at 14. I don’t follow the court’s logic. If the EPA prohibits the specification of a disposal site, then how does that not totally undermine the permit that specified that disposal site?

The court was also troubled by the fact that EPA vetoed the permit nearly two years after it has been approved, but according to EPA, on the basis of new information. The court construed the word “whenever” in Section 404(c) not to mean “at any time” but rather to simply signal a predicate to the finding of adverse environmental effects. The court was also unwilling to read the phrase “including the withdrawal of specification” to mean that the EPA could take action sometime after the final specification was made by the Corps.

The court tries to reinforce its conclusion by pointing to what it describes as the “exclusive permitting authority accorded the Corps in section 404(a).” Slip op. at 18. But this notion that the Corps has exclusive authority over Section 404 runs against everything I have always thought (and taught) about this provision.

What is perhaps most troubling about this decision is the dismissive way that the judge treats the EPA and its role under the Clean Water Act. There is no deference to the EPA or even respect for its role in the process. And the rhetorical flourishes were a bit much. (This is the first time I have seen a court exclaim “Poof!” in a written decision.)

~Mark Squillace

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