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Going Too Far

EPA Held to Have Overstepped Its Statutory Authority Under Clean Water Act.

By Carolyn L. McIntosh, Partner, Patton Boggs LLP

The Environmental Protection Agency (EPA) has undertaken a concerted effort over the last several years to expand its authority under the Federal Water Pollution Control Act or Federal Clean Water Act (CWA), especially the dredge and fill permit provisions under Section 404 (33 U.S.C. § 1344). The Federal District Court for the District of Columbia in National  Mining  Association v. Jackson, D.D.C., No. 1:10-cv-1220, 10/6/11 (NMA v. Jackson) as just so held. Judge Walton overturned a current 404 permitting process, holding that EPA has exceeded its CWA statutory authority. EPA’s current CWA agenda includes a number of controversial efforts, several of which are implicated by Judge Walton’s ruling. This article is limited to the holding in NMA v. Jackson.

The United States Army Corps of Engineers (Corps) is the sole permitting authority under Section 404. “The Secretary may issue permits, after notice and the opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Section 404(a). And Section 404(d) makes it clear that “Secretary” means the Secretary of the Army, acting through the Chief of Engineers. EPA does have several roles under Section 404, NOT including actually issuing dredge and fill permits.

Congress identified three principle roles for EPA under Section 404, all supporting the Corps:

1) to work with the Corps to promulgate guidelines for selection of disposal sites under Section 404(b)(1);

2) to veto individual permits for disposal under Section 404(c); and,

3) to coordinate 404 permit application reviews with other identified federal agencies to minimize duplication and delays in permit issuance under Section 404(q).

At issue in NMA v. Jackson, was whether application by the Corps and EPA of certain “enhanced coordination” requirements for mountaintop coal mining 404 permit applications exceeded EPA’s statutory authority and whether use of these procedures without notice and comment violated the Administrative Procedures Act (APA). Specifically, NMA sued multiple federal defendants over EPA’s June 11, 2009 Enhanced Coordination (EC) Process, including the Multi-Criteria Resource (MCIR) Assessment.

The Court denied NMA's motion for a preliminary injunction and the federal defendants' motion to dismiss, Nat'l Mining Ass'n v. Jackson, 768 F. Supp. 2d 34, 56 (D.D.C. 2011). Four cases pending in United States District Courts in West Virginia and Kentucky were then transferred to the District of Columbia District Court and consolidated with NMA v. Jackson. The Court approved a bifurcated briefing schedule, addressing the MCIR Assessment and EC Process first.

Targeting Pending Permits
Under the EC Process, EPA targeted 79 then-pending permits for surface coal mines. While many companies gave up and withdrew their permits, the majority has simply stalled – only 8 of 79 had been issued as of July 2011. The EC Process was initiated by the June 11, 2009, “Memorandum of Understanding on Implementing the Interagency Plan on Appalachian Surface Coal Mining,” between the EPA, the Corps, and the Department of the Interior (the June 2009 MOU). The ostensible purpose of the June 2011 MOU was to enhance environmental review coordination between the agencies for pending Section 404 permit applications for Appalachian surface coal mining activities.

Concurrently, the agencies issued memoranda clarifying that the EC Process would be a two-step process beginning with EPA’s MCIR Assessment, followed by separate coordination between the Corps and EPA. During the MCIR Assessment, EPA directed the Corps which permits would go through the EC Process and EPA selected the criteria to be applied in the MCIR Assessment – the Corps was not involved. Opinion at 5.

No Ambiguity
The Court found there was no ambiguity in the CWA as to EPA’s role: “the parties do not dispute that the Corps is the sole entity authorized to issue Section 404 permits … [A]fter the first subsection of Section 404 establishes the Corps as the sole permitting authority, other subsections delineate discrete roles for the Administrator in the Section 404 permitting framework. Thus, while it is true that the EPA does have some role to play in the Section 404 permitting process, the carving out of limited circumstances for EPA involvement in the issuance of Section 404 permits appears to be a statutory ceiling on that involvement.” Citations omitted. Opinion at 10.

Further holding, “as the statute plainly reads, Congress established a permitting scheme in which the Corps is to be the principal player, and the EPA is to play a lesser, clearly defined supporting role. With the adoption of the MCIR Assessment and the EC Process, the EPA has expanded its role in the issuance of Section 404 permits and has thus exceeded the statutory authority afforded to it by the Clean Water Act.” Opinion at 11-12.

The Court concluded that neither the EC Process nor the MCIR Assessment were procedural rules. “[I]n the absence of the June 11, 2009 MOU and the letters written the same day, ‘there would not be an adequate legislative basis for’ the EPA to conduct the MCIR Assessment or subject the pending permit applications to the additional scrutiny of the EC Process … the MCIR Assessment and the EC Process ‘effectively amend’ the Section 404 permitting process … compel[ling] a finding that the MCIR Assessment and the EC Process are legislative rules.” Citations omitted. Opinion at 18. Accordingly, notice and comment was required before their implementation.

As noted at the outset of this article, EPA has other issues pending, including guidance requiring conductivity analysis, which EPA contends will show increased stream mineralization from mountaintop mining practices.

NMA challenged the conductivity guidance is this case, but it is subject to a later briefing schedule and likely to be resolved in the spring of 2012. NMA v. Jackson may also have implications for the CWA jurisdictional guidance I addressed in the August 2011 issue.

Carolyn McIntosh, a partner with Patton Boggs, counsels clients on complex environmental-compliance matters, and environmental and natural-resources litigation. In addition to her environmental litigation and regulatory work, she counsels a variety of companies in area of renewable energy and clean technology. 303-894-6127, This email address is being protected from spambots. You need JavaScript enabled to view it.