May 15, 2013

Got a permit? EPA doesn't care

By Brian T. Hodges Senior Attorney

When the Supreme Court of the United States issued its opinion in Rapanos v. United States a few years ago, it highlighted that the average applicant for a Clean Water Act Section 404 permit spends 788 days and $271,596 to complete the permitting process.  Why would an applicant commit so much time and money to the Section 404 permit process?  Because the permit provides protection—it allows the applicant to discharge dredged or fill material (an essential activity for many development projects) without fear of violating the Clean Water Act, so long as the permit holder abides by the terms of the permit.

Now a recent opinion from the D.C. Circuit Court of Appeals could change everything.  Well, not quite everything.  Section 404 permits will still be expensive and take a lot of time to acquire.  They will just provide less assurance that the permit holder’s project will actually comply with the Clean Water Act.

The source of the uncertainty is the D.C. Circuit’s opinion in Mingo Logan Coal Co. v. EPA.  Mingo Logan operates a coal mine in West Virginia that the Army Corps of Engineers permitted under Section 404 in 2007.  Mingo Logan’s permit governs disposal of materials at the mine, and specifies which water bodies are available for use as discharge sites.  Years after the Corps issued the permit and the mine began operations, EPA “revoked” the permit by pronouncing that Mingo Logan was barred from discharging into some of the streams that the Corps had designated as disposal sites.  Mingo Logan challenged the EPA and prevailed in federal district court, but the Court of Appeals issued a sweeping opinion that allows EPA to withdraw Corps-designated disposal sites “whenever” EPA determines it is necessary.

So what is a Section 404 permit worth if EPA can take it away at any time?

It remains to be seen whether the plaintiffs in Mingo Logan will seek Supreme Court review.  In the meantime, the opinion is attracting the attention of legal practitioners, the mining industry, and even Congress.

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