Last Friday, EPA announced that it is initiating review of the proposed mining of the Pebble deposit in Alaska under Section 404(c) of the Clean Water Act, a little-used part of the CWA that allows EPA to “veto” Section 404 permits issued by the Army Corps of Engineers. As we briefly discussed over on Graham & Dunn’s Northwest Maritime Law and Marine Affairs Blog, Section 404(c) authority has only been exercised thirteen times in the forty plus year history of the Clean Water Act, with only two determinations being made in the last twenty years. The complete chronology of EPA’s 404(c) final actions is available here. It is interesting that these determinations seems to come in streaks, with eleven issued between 1980 to 1991, then none for almost two decades until 2008 when EPA dusted off its 404(c) authority and seems to be using it again with some regularity. We could be seeing a revival of the use of that authority, with these types of determinations becoming increasingly common over the next few years. With that in mind, I spent some time over the weekend digging into the history of the thirteen times EPA has used its 404(c) authority. Here are some of the highlights of what I found in working through the history of Section 404(c) determinations:
Spruce No. 1 Surface Mine–Logan County, West Virginia: This 404(c) determination halted a proposal that would have disposed of 110 million cubic yards of coal mine waste into streams in West Virginia, which would have buried more than six miles of those streams, with related environmental impacts. EPA reportedly negotiated with the project proponent for more than a year to try and reach a compromise, but those negotiations were unsucessful. Since the determination was made in January 2011, the decision has been the subject of litigation, with a district court first finding that EPA’s timing of the veto (after the Corps issued a CWA Section 404 permit) was outside of EPA’s CWA authority, but that ruling was subsequently reversed and remanded by the D.C. Court of Appeals. The district court may end up considering the merits of the plaintiff’s claims, although that action is currently stayed while the Supreme Court considers the project proponent’s writ of certiorari. Regardless of whether the Supreme Court reviews this case, it is worth following.
Yazoo Backwater Area Pumps Project–Issequena County Mississippi: This project is the earlier of the two recent 404(c) determinations by EPA, and involved withdrawal of at least 67,000 acres of wetlands from use as part of a flood control project in west-central Mississippi. Like the Spruce No. 1 Surface Mine, this decision was litigated–although the issue in that litigation had to do with whether the project was subject to a narrow exemption in the CWA. In 2012, the Court of Appeals for the Fifth Circuit affirmed the district court’s determination that the Section 404(c) veto was valid, and it appears this project is dead.
Two Forks Water Supply Impoundments–Jefferson and Douglas Counties, Colorado: This determination–made by EPA back in 1990–effectively killed a proposed dam on the South Platte River in Colorado. Like the above two projects, this decision was extensively litigated and in 1996 the District Court of Colorado issued an extensive ruling upholding EPA’s 404(c) determination. The proposed dam was never built.
Other Section 404(c) determinations have received similar treatment by federal courts, with the courts always arriving, usually after a series of appeals and remands, at the conclusion that EPA has broad discretionary authority under Section 404(c), with the actual decisions being difficult to overturn under the APA’s arbitrary and capricious standard. The Ware Creek determination is a good example of protracted litigation (spanning five years), including two separate appeals to the Fourth Circuit. The final decision—which the Supreme Court denied certiorari—provides a great summary of the history of that litigation and is available here.
What is the lesson from this history? EPA’s authority under Section 404(c), although used sparingly, is well tested in the courts, and well defined. District Courts have overturned such determinations on a variety of project-specific grounds, but, in general, those reversals of EPA’s determinations have not survived the appeal process. Given this history, a judicial reversal of a Section 404(c) determination that is adverse to the Pebble project proponent’s interests will be a lengthy and expensive process, and likely not one that has a high probability of success. And, we can certainly expect the decision, one way or the other, to be scrutinized by the courts. Avoiding a withdrawal of the waters at issue under Section 404(c) in the Pebble matter may be the only hope the project proponent has in keeping its project alive, because it would certainly be easier for the project proponent to be defending such a decision in a court rather than challenging an adverse decision made by EPA. So, effective dialogue with EPA in the upcoming 404(c) process that leads to a compromise that addresses EPA’s concerns will be crucial if the project is to move forward.