Legal Alert - D.C. Circuit Validates EPA’s Consultation Process for Reviewing Clean Water Act Permits
by Lucas J. Narducci, Denise A. Dragoo, Michael C. Ford, Jim P. Allen and Christopher P. Colyer
On July 11, 2014, the United States Court of Appeals for the District of Columbia Circuit upheld the United States Environmental Protection Agency’s (EPA) “Enhanced Coordination Process,” which was developed with the United States Army Corps of Engineers (the USACE) for review of Section 404 Clean Water Act (CWA) permits. The Court also found that EPA’s “Final Guidance” for the issuance of certain Section 402 CWA permits relating to the coal mining industry was not a final agency action subject to review. This decision reversed a lower court ruling in favor of the National Mining Association and Kentucky Coal Association. Although the policies at issue arose in the context of coal mining in the Appalachian region, the decision impacts the entire regulated industry by imposing further EPA oversight into CWA permit decisions.