## Facts

- Mingo Logan Coal Company operated the Spruce No. 1 mountaintop removal mine in Logan County, West Virginia.
- In 2007, the U.S. Army Corps of Engineers issued a Clean Water Act (CWA) § 404 permit authorizing discharges of dredged or fill material into three streams and tributaries associated with valley fills.
- CWA § 404 assigns the Corps primary authority to issue § 404 permits, while § 404(c) authorizes EPA to “prohibit, deny, restrict, or withdraw” the specification of disposal sites if the discharge “will have an unacceptable adverse effect” on specified resources.
- After permit issuance, EPA developed concerns based on additional information about impacts from filling headwater streams, including burial of stream ecosystems and downstream water-quality changes affecting aquatic life.
- EPA requested that the Corps modify the permit; the Corps declined.
- EPA then issued a Final Determination under § 404(c) withdrawing the specification of two authorized disposal streams (Pigeonroost Branch and Oldhouse Branch).
- Mingo Logan challenged EPA’s action, asserting EPA lacked post-permit § 404(c) authority and, alternatively, that the action was arbitrary and capricious under the Administrative Procedure Act (APA).
- The district court granted summary judgment to Mingo Logan on the statutory-authority issue; EPA appealed.

## Issues

1. Whether CWA § 404(c) authorizes EPA to withdraw a disposal-site specification after the Corps has issued a § 404 permit designating that site.

## Decision

- The D.C. Circuit reversed the district court.
- The court held that § 404(c) authorizes EPA to withdraw disposal-site specifications “whenever” EPA makes the required determination, including after permit issuance.
- The court remanded for the district court to consider the remaining APA challenges, which the court of appeals did not reach.

## Legal Principles

- Under CWA § 404(c), EPA may “prohibit, deny, restrict, or withdraw” disposal-site specifications “whenever” it determines a discharge will have an unacceptable adverse effect on protected resources; the authority is not limited to the pre-permit stage.
- The term “withdraw” in § 404(c) supports post-specification action, including withdrawal of sites already specified in an issued permit.
- Statutory structure permits the Corps to administer permitting while preserving EPA’s oversight role to prevent unacceptable environmental harm.
- Applying Chevron, when § 404(c) is ambiguous on timing, EPA’s interpretation allowing action before, during, or after the Corps permitting process is a reasonable construction entitled to deference.
- Permit-holder reliance and permitting finality concerns do not eliminate EPA’s statutory authority, though they may be relevant to APA review on remand.

## Conclusion

The D.C. Circuit held that EPA’s Clean Water Act § 404(c) veto power includes authority to withdraw disposal-site specifications after the Corps issues a § 404 permit, and it remanded for consideration of the permit holder’s APA challenges to EPA’s Final Determination.


Mingo Logan Coal Co. v. U.S. Environmental Protection Agency, 714 F.3d 608 (D.C. Cir. 2013)