Section 404 of the CWA authorized EPA
“to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and . . . to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines,… the discharge into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas…, wildlife, or recreational areas.”
33 U.S.C. § 1311(a)(emphasis added). The court focused on the highlighted language to affirm the scope of authority asserted by EPA. The court noted that while the statute authorizes the Corps to issue permits, Section 404(c) provides EPA with a “a broad environmental ‘backstop’ authority over the [Corps’] discharge site selection.” Mingo Logan Coal Company, slip op. at 8. The court further reasoned that the statute did not impose any temporal limit on EPA’s invocation of its withdrawal authority, specifically allowing EPA to withdraw a disposal area specification “whenever” it determines that disposal at a site will have an “unacceptable adverse effect” on the environment. Id. Finally, the court noted both EPA’s consistent historical assertion of its powers and the Corps’ acquiescence in EPA’s interpretation.
As noted above, unless reversed by the D.C. Circuit in en banc review or the Supreme Court on a writ of certiorari, this decision creates essentially unlimited regulatory uncertainty for any mining operation that requires a Section 404 permit. The uncertainty exists not only during the permitting process, but also for the entire time the permit is valid, since EPA can act to modify terms “whenever” it chooses. In those instances, the sole recourse for the permit holder is to challenge and EPA determination as to potential environmental effects. While such challenges can be successful, they present substantial obstacles.