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National Mining Ass'n v. McCarthy

ELR Citation: 44 ELR 20153
Nos. 12-5310, (D.C. Cir., 07/11/2014)

The D.C. Circuit upheld EPA's and the U.S. Army Corps of Engineers' Enhanced Coordination Process memorandum, which concerns CWA §404 mining permit applications, as well as an EPA guidance document relating to such permits, against challenges from the mining industry and two states. The Enhanced Coordination Process allows EPA to screen §404 mining permit applications submitted to the Corps. EPA then initiates discussions with the Corps on proposed mining projects that EPA considers likely to damage water bodies. The EPA guidance, meanwhile, recommends that states impose more stringent conditions for issuing permits under §402. The mining industry and the states of Kentucky and West Virginia challenged the Enhanced Coordination Process and the guidance as exceeding the agencies' authority under SMCRA and the CWA. A district court sided with the plaintiffs, but the D.C. Circuit reversed. The CWA does not explicitly or implicitly bar the Enhanced Coordination Process adopted by the agencies. Nothing in the Enhanced Coordination Process has changed the statutory criteria on which §404 permitting decisions are based. Nor has it changed the substantive statutory responsibilities of the two agencies involved in the §404 permitting process. The Corps still makes the ultimate decision whether to approve the permit. And there is no statutory provision that forbids EPA from consulting with or coordinating with the Corps, or vice versa. In addition, because the Enhanced Coordination Process is a rule of procedure, it did not require notice and comment under the APA. And EPA's guidance is a general statement of policy rather than a legislative rule, which means it is not subject to preenforcement review.