## Facts

- Coal industry groups, coal companies, and several states challenged two federal actions affecting Appalachian surface coal mining permits under the Clean Water Act (CWA).
- Surface coal mining commonly requires permits under the Surface Mining Control and Reclamation Act (SMCRA) and, if discharges occur, CWA permits under:
  - CWA § 404 (dredged or fill material), issued by the U.S. Army Corps of Engineers with EPA oversight authorities; and
  - CWA § 402 (effluent limits), typically issued by state agencies under EPA-approved programs.
- The first challenged action was an EPA–Corps “Enhanced Coordination Process” (ECP) for reviewing certain Appalachian § 404 permit applications through increased inter-agency consultation.
- The second challenged action was EPA’s 2011 “Final Guidance” addressing electrical conductivity considerations for § 402 permitting; the document stated it provided recommendations and did not impose legally binding requirements.
- Plaintiffs alleged the ECP unlawfully altered the statutory § 404 permitting framework and that the conductivity guidance was a binding legislative rule issued without notice-and-comment procedures required by the Administrative Procedure Act (APA).
- The district court granted summary judgment to plaintiffs, concluding the ECP unlawfully changed the § 404 process and the guidance functioned as a substantive rule adopted without notice and comment.
- EPA, the Corps, and intervening environmental groups appealed, and the appeals were consolidated.

## Issues

1. Whether the EPA–Corps Enhanced Coordination Process for CWA § 404 permits was barred by the CWA or constituted a final, reviewable legislative rule under the APA.
2. Whether EPA’s 2011 conductivity Final Guidance was a final, binding legislative rule subject to immediate judicial review and notice-and-comment rulemaking, or a nonbinding policy statement rendering the challenge unripe.

## Decision

- The court reversed the district court’s judgment.
- The court held the CWA did not prohibit the Enhanced Coordination Process and that the process functioned as inter-agency consultation rather than a rule altering legal rights or obligations.
- The court held the challenge to the conductivity Final Guidance was not ripe because the guidance was not final agency action and did not itself impose binding legal requirements.
- The court indicated that any concrete legal effects would arise, if at all, from later permit decisions that could be challenged in case-specific review.

## Legal Principles

- Inter-agency coordination mechanisms that do not themselves change governing legal standards or impose new obligations generally are not legislative rules under the APA.
- A document labeled and framed as nonbinding guidance, which does not by its own force deny permits or change legal obligations, ordinarily is a policy statement rather than a legislative rule.
- Under the APA, judicial review typically requires “final agency action”; where guidance has no direct legal effect and has not been applied in a concrete way, a broad facial challenge is generally unripe.
- The CWA’s allocation of § 404 responsibilities permits consultation between the Corps and EPA; enhanced coordination is permissible so long as permit authority remains within the statutory structure.

## Conclusion

The D.C. Circuit upheld the EPA–Corps § 404 enhanced coordination procedure as permissible consultation under the CWA and rejected an immediate facial challenge to EPA’s conductivity guidance as unripe because the guidance was nonbinding and not final agency action under the APA.


Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014)