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Mingo Logan v. U.S. Environmental Protection Agency

ELR Citation: 44 ELR 20217
Nos. 10-0541, (D.D.C., 09/30/2014) (Jackson, J.)

A district court upheld EPA's revocation of a CWA §404 permit allowing a mining company to discharge fill material from its West Virginia mountaintop coal mine into two nearby streams. EPA withdrew the permit's designation of the streams as disposal sites after determining that the discharges would have an unacceptable adverse effect on wildlife and the environment. In so doing, EPA retroactively voided the permit, which had already been issued by the U.S. Army Corps of Engineers. The mining company challenged EPA's decision under the APA and the CWA, and the district court initially held that EPA did not have statutory authority under the CWA to withdraw a site specification once the Corps issued a permit. But on appeal, the D.C. Circuit reversed, holding that EPA may exercise its §404(c) veto authority after a permit has issued. It then remanded the case for consideration of company's remaining APA claims. On remand, the court ruled in favor of EPA, finding that the Agency provided a reasonable explanation for its decision to withdraw the site specification. EPA's conclusions that the §404 discharges would have unacceptable adverse effects on the wildlife within the fill site and that the mitigation requirements set forth in the permit were insufficient are both entitled to deference. In addition, EPA may consider downstream consequences when evaluating whether proposed discharges of dredged or fill material will have unacceptable adverse effects under §404(c). EPA also demonstrated a causal link between the identified downstream unacceptable adverse effects and the proposed §404 discharges into the two streams. Nor does EPA need substantial new information to exercise its veto authority in this case. And EPA is not bound by West Virginia’s water quality standards when conducting its §404(c) analysis.