EPA Really Does Have Authority To Withdraw Specifications Under Section 404 Of The Clean Water Act

Last year, the D.C. Circuit Court of Appeals ruled that EPA has authority to withdraw its approval for the specification of sites for the disposal of fill material, even after the Army Corps has issued a permit for the discharge under section 404 of the Clean Water Act. Now, Judge Amy Berman Jackson of the District Court for the District of Columbia has ruled that EPA properly exercised that authority with respect to the Spruce No. 1 Mine in West Virginia.

The decision, which appears bullet-proof to me, is a ringing endorsement of EPA's authority in this area.

As an initial matter, it's worth emphasizing that Judge Jackson originally ruled for Mingo Logan, finding that EPA could not withdraw a specification after the permit issued. Indeed, she could not resist a reminder of her original holding: