D.C. Circuit Rules EPA Has Authority to Change, If Not Revoke, Wetlands Permits After Army Corps Has Issued Them

In a startling industry defeat, the United States Court of Appeals for the District of Columbia held that the U.S. Environmental Protection Agency (EPA) has the authority under the Clean Water Act (CWA) to change, if not revoke, Section 404 “dredge-and-fill” discharge permits that have already been approved and issued by the U.S. Army Corps of Engineers (Corps).  Mingo Logan Coal Co. v. USEPA, No. 12-5150 (D.C. Cir. April 23, 2013). The federal court ruled that CWA Section 404(c) grants EPA this power “whenever [it] determines” that the discharge will have an “unacceptable adverse effect” on identified environmental resources.  Under the D.C. Circuit’s decision, even after a regulated entity lawfully obtains a Section 404 permit from the Corps, EPA can exercise its authority – independent from the Corps – to withdraw some or all of the approved disposal sites from the permit at any time during the life of that permit.  As a result of this precedent, the regulated community may face a continued risk to investment in any project requiring a Section 404 discharge permit, even after a permit has been issued, and even where EPA itself was involved in and approved the issuance of the permit in the first place. A more comprehensive report can be found here. For more information, please contact Leah Pilconis at pilconisl@agc.org or Scott Berry at berrys@agc.org