EPA's Attempt to Expand Authority over Dredge-and-Fill Permitting Rejected

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On March 23, the U.S. District Court for the District of Columbia rejected the Environmental Protection Agency's (EPA) unprecedented attempt to retroactively veto a "dredge-and-fill" permit issued by the Army Corps of Engineers (Corps) under section 404 of the Clean Water Act - a significant win for the coal mining industry. This just days after the Supreme Court ruled unanimously in Sackett v. EPA that EPA's issuance of Clean Water Act compliance orders is judicially reviewable under the Administrative Procedure Act.

At issue in Mingo Logan v. EPA was whether EPA has the authority under section 404(c) of the Clean Water Act to withdraw the specification of disposal sites after the Corps issues a permit under section 404(a). Mingo Logan Coal Company (Mingo Logan), a subsidiary of Arch Coal, had been authorized by a Corps-issued permit to discharge fill material from its coal mine into nearby streams. But, nearly three years after the permit issued, EPA attempted to withdraw the specification of the streams as disposal sites, effectively invalidating the permit. Mingo Logan filed suit, asking the district court to declare that EPA exceeded its statutory authority.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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