Mingo Logan Coal Co. v. United States Environmental Protection Agency , 714 F.3d 608 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 14, 2013 Decided April 23, 2013
No. 12-5150
MINGO LOGAN COAL COMPANY,
APPELLEE
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00541)
Matthew Littleton, Attorney, United States Department of
Justice, argued the cause for the appellant. Aaron P. Avila,
Mark R. Haag, Cynthia J. Morris and Kenneth C. Amaditz,
Attorneys, United States Department of Justice, and Stefania
D. Shamet, Attorney, United States Environmental Protection
Agency, were on brief.
Emma C. Cheuse, Jennifer C. Chavez and Benjamin A.
Luckett were on brief for amici curiae West Virginia
Highland Conservancy et al. in support of the appellant.
Robert M. Rolfe argued the cause for the appellee.
George P. Sibley III, Virginia S. Albrecht and Deidre G.
Duncan were on brief.
2
Kathryn Kusske Floyd and Jay C. Johnson were on brief
for amici curiae Chamber of Commerce of the United States
of America et al. in support of the appellee.
Michael A. Carvin and Kevin P. Holewinski were on brief
for amicus curiae United Company in support of the appellee.
Benjamin L. Bailey and Michael B. Hissam were on brief
for amicus curiae Randy Huffman in support of the appellee.
Thanos Basdekis entered an appearance.
Before: HENDERSON, GRIFFITH and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: The Mingo
Logan Coal Company (Mingo Logan) applied to the United
States Army Corps of Engineers (Corps) for a permit under
section 404 of the Clean Water Act (CWA), 33 U.S.C. § 1344,
to discharge dredged or fill material from a mountain-top coal
mine in West Virginia into three streams and their tributaries.
The Corps—acting on behalf of the Secretary of the Army
(Secretary) and without objection from the Administrator of
the United States Environmental Protection Agency
(Administrator, EPA), who has “veto” authority over
discharge site selection under CWA subsection 404(c), 33
U.S.C. § 1344(c)—issued the permit to Mingo Logan,
approving the requested disposal sites for the discharged
material. Four years later, EPA invoked its subsection 404(c)
authority to “withdraw” the specifications of two of the
streams as disposal sites, thereby prohibiting Mingo Logan
from discharging into them. Mingo Logan filed this action
challenging EPA’s withdrawal of the specified sites on the
grounds that (1) EPA lacks statutory authority to withdraw
site specification after a permit has issued and (2) EPA’s
decision to do so was arbitrary and capricious in violation of
the Administrative Procedure Act (APA), 5 U.S.C. §§ 701 et
3
seq. The district court granted summary judgment to Mingo
Logan on the first ground without reaching the second. We
reverse the district court concluding that EPA has post-permit
withdrawal authority, and remand for further proceedings.
I.
The CWA provides that “the discharge of any pollutant by
any person shall be unlawful” except as in compliance with
specifically enumerated CWA provisions, including section
404.1 33 U.S.C. § 1311(a). Subsection 404(a) authorizes the
Secretary to issue permits allowing discharge of dredged or
fill material “at specified disposal sites,” which are to be
“specified for each such permit by the Secretary . . . through
the application of guidelines developed by the Administrator,
in conjunction with the Secretary.” Id. § 1344(a), (b). The
Secretary’s authority to specify a disposal site is expressly
made “[s]ubject to subsection (c) of [section 404].” Id.
§ 1344(b). Subsection 404(c) authorizes the Administrator,
after consultation with the Corps, to veto the Corps’s disposal
site specification—that is, the Administrator “is authorized to
prohibit the specification (including the withdrawal of
1
Under the CWA, “discharge of a pollutant” means “any addition
of any pollutant to navigable waters from any point source,” 33 U.S.C.
§ 1362(12); “pollutant,” in turn, “means dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into water,” id.
§ 1362(6). CWA section 404 authorizes the Secretary, acting through
the Corps, to issue permits for the discharge of dredged and fill
material, while section 402 authorizes EPA to issue permits for the
discharge of other pollutants. Nat’l Ass’n of Home Builders v. EPA,
667 F.3d 6, 10 (D.C. Cir. 2011) (citing Nat’l Ass’n of Home Builders
v. U.S. Army Corps of Eng’rs, 440 F.3d 459, 461 n.1 (D.C. Cir.
2006)).
4
specification) of any defined area as a disposal site, and . . . to
deny or restrict the use of any defined area for specification
(including the withdrawal of specification) as a disposal
site”—“whenever he determines” the discharge will have an
“unacceptable adverse effect” on identified environmental
resources. Id. § 1344(c).
In June 1999, Hobet Mining, Inc., Mingo Logan’s
predecessor, applied for a section 404 permit to discharge
material from the Spruce No. 1 Mine into four West Virginia
streams and their tributaries. In 2002, after the Corps
prepared a draft Environmental Impact Statement, EPA
expressed its concern that “even with the best practices,
mountaintop mining yields significant and unavoidable
environmental impacts that had not been adequately described
in the document.” Letter from EPA, Region III to Corps,
Huntington Dist., at 1 (June 16, 2006) (JA 617). In the end,
however, EPA declined to pursue a subsection 404(c)
objection. Email from EPA to Corps (Nov. 2, 2006) (JA 982)
(“[W]e have no intention of taking our Spruce Mine concerns
any further from a Section 404 standpoint . . . .”). On January
22, 2007, the Corps issued Mingo Logan a section 404 permit,
effective through December 31, 2031, which authorized
Mingo Logan to dispose of material into three
streams—Pigeonroost Branch, Oldhouse Branch and Seng
Camp Creek—and certain tributaries thereto. Dep’t of the
Army Permit No. 199800436-3 (JA 984) (Spruce Mine
Permit). The permit expressly advised that the Corps “may
reevaluate its decision on the permit at any time the
circumstances warrant” and that “[s]uch a reevaluation may
result in a determination that it is appropriate to use the
suspension, modification, and revocation procedures
contained in 33 CFR 325.7.” Id. at 3 (JA 986). The permit
made no mention of any future EPA action.
5
On September 3, 2009, EPA wrote the Corps requesting it
“use its discretionary authority provided by 33 CFR 325.7 to
suspend, revoke or modify the permit issued authorizing
Mingo Logan Coal Company to discharge dredged and/or fill
material into waters of the United States in conjunction with
the construction, operation, and reclamation of the Spruce
Fork No. 1 Surface Mine,” based on “new information and
circumstances . . . which justif[ied] reconsideration of the
permit.” Letter from EPA, Region III to Corps, Huntington
Dist., at 1 (Sept. 3, 2009) (JA 941). EPA noted in particular
its “concern[] about the project’s potential to degrade
downstream water quality.” Id. The Corps responded that
there were “no factors that currently compell[ed it] to consider
permit suspension, modification or revocation.” Letter from
Corps, Huntington Dist. to EPA, Region III, at 2 (Sept. 30,
2009) (JA 950). EPA wrote back: “We intend to issue a
public notice of a proposed determination to restrict or
prohibit the discharge of dredged and/or fill material at the
Spruce No. 1 Mine project site consistent with our authority
under Section 404(c) of the Clean Water Act and our
regulations at 40 C.F.R. Part 231.” Letter from EPA, Region
III to Corps, Huntingdon Dist., at 1 (October 16, 2009) (Supp.
JA 1).
EPA’s Regional Director published the promised notice
of proposed determination on April 2, 2010, requesting public
comments “[p]ursuant to Section 404(c) . . . on its proposal to
withdraw or restrict use of Seng Camp Creek, Pigeonroost
Branch, Oldhouse Branch, and certain tributaries to those
waters in Logan County, West Virginia to receive dredged
and/or fill material in connection with construction of the
Spruce No. 1 Surface Mine.” Proposed Determination, 75
Fed. Reg. 16,788, 16,788 (Apr. 2, 2010). The Regional
Director followed up with a Recommended Determination on
September 24, 2010, limited to withdrawal of the
specification of Pigeonroost Branch and Oldhouse Branch and
6
their tributaries. On January 13, 2011, EPA published its
Final Determination, which, adopting the Regional Director’s
recommendation, formally “withdraws the specification of
Pigeonroost Branch, Oldhouse Branch, and their tributaries,
as described in [the Spruce Mine Permit] . . . as a disposal site
for the discharge of dredged or fill material for the purpose of
construction, operation, and reclamation of the Spruce No. 1
Surface Mine” and “prohibits the specification of the defined
area . . . for use as a disposal site associated with future
surface coal mining that would be expected to result in a
nature and scale of adverse chemical, physical, and biological
effects similar to the Spruce No. 1 mine.” Final
Determination of the Assistant Administrator for Water
Pursuant to Section 404(c) of the Clean Water Act
Concerning the Spruce No. 1 Mine, Logan County, WV, 76
Fed. Reg. 3126, 3128 (Jan. 19, 2011).
Mingo Logan filed this action in district court
immediately following the Proposed Determination,
challenging EPA’s authority to “revoke” the three-year-old
permit, Compl., ¶ 75, Mingo Logan Coal Co. v. U.S. EPA,
C.A. No. 10-00541 (D.D.C. Apr. 2, 2010), and amended its
complaint in February 2011 to challenge the Final
Determination, asserting it is both ultra vires and arbitrary and
capricious. Am. Compl., Mingo Logan Coal (Feb. 28, 2011).
On cross-motions for summary judgment, the district
court granted judgment to Mingo Logan on March 23, 2012.
Mingo Logan Coal Co. v. U.S. EPA, 850 F. Supp. 2d 133(D.D.C. 2012). The court concluded EPA “exceeded its
authority under section 404(c) of the Clean Water Act when it
attempted to invalidate an existing permit by withdrawing the
specification of certain areas as disposal sites after a permit
had been issued by the Corps under section 404(a).” Id. at
134. The United States filed a timely notice of appeal on
7
behalf of EPA. The Corps joined EPA on brief. See
Appellant Br. & Reply Br.
II.
In granting summary judgment, the district court agreed
with Mingo Logan’s interpretation of subsection 404 to
preclude EPA from withdrawing a site specification once the
Corps has issued a permit. “We review a grant of summary
judgment de novo applying the same standards as those that
govern the district court’s determination.” Troy Corp. v.
Browner, 120 F.3d 277, 283 (D.C. Cir. 1997). “Moreover,
insofar as the agency’s determination amounts to or involves
its interpretation of . . . a statute entrusted to its administration,
we review that interpretation under the deferential standard of
Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984).” Id. Under Chevron:
We first ask “whether Congress has directly spoken
to the precise question at issue,” in which case we
“must give effect to the unambiguously expressed
intent of Congress.” If the “statute is silent or
ambiguous with respect to the specific issue,”
however, we move to the second step and defer to the
agency’s interpretation as long as it is “based on a
permissible construction of the statute.”
Natural Res. Def. Council v. EPA, 706 F.3d 428, 431 (D.C.
Cir. 2013) (quoting Chevron, 467 U.S. at 842–43). We
construe subsection 404(c) under Chevron step 1 because we
believe the language unambiguously expresses the intent of
the Congress.
As noted earlier, see supra p. 3, section 404 vests the
Corps, rather than EPA, with the authority to issue permits to
discharge fill and dredged material into navigable waters and
to specify the disposal sites therefor. See 33 U.S.C. § 1344(a)-
(b); see Senate Consideration of the Report of the Conference
8
Committee, 1 A Legislative History of the Water Pollution
Control Act Amendments of 1972 (Legislative History) 161,
177 (Jan. 1973) (Statement of Sen. Edmund Muskie, 118
Cong. Rec. at 33,699 (Oct. 4, 1972)) (Senate Committee “had
reported a bill which treated the disposal of dredged spoil like
any other pollutant” but Conference Committee adopted
provisions of House bill that “designated the Secretary of the
Army rather than the Administrator of the Environmental
Protection Agency as the permit issuing authority”).
Nonetheless, the Congress granted EPA a broad environmental
“backstop” authority over the Secretary’s discharge site
selection in subsection 404(c), which provides in full:
(c) Denial or restriction of use of defined areas as
disposal sites
The Administrator is authorized to prohibit the
specification (including the withdrawal of
specification) of any defined area as a disposal site,
and he is authorized to deny or restrict the use of any
defined area for specification (including the
withdrawal of specification) as a disposal site,
whenever he determines, after notice and opportunity
for public hearings, that the discharge of such
materials into such area will have an unacceptable
adverse effect on municipal water supplies, shellfish
beds and fishery areas (including spawning and
breeding areas), wildlife, or recreational areas.
Before making such determination, the Administrator
shall consult with the Secretary. The Administrator
shall set forth in writing and make public his findings
and his reasons for making any determination under
this subsection.
33 U.S.C. § 1344(c); see Legislative History at 177 (“[T]he
Conferees agreed that the Administrator . . . should have the
veto over the selection of the site for dredged spoil disposal
9
and over any specific spoil to be disposed of in any selected
site.”).2 Section 404 imposes no temporal limit on the
Administrator’s authority to withdraw the Corps’s
specification but instead expressly empowers him to prohibit,
restrict or withdraw the specification “whenever” he makes a
determination that the statutory “unacceptable adverse effect”
will result. 33 U.S.C. § 1344(c) (emphasis added). Using the
expansive conjunction “whenever,” the Congress made plain
its intent to grant the Administrator authority to
prohibit/deny/restrict/withdraw a specification at any time.
2
Thus, subsection 404(c) affords EPA two distinct (if
overlapping) powers to veto the Corps’s specification: EPA may (1)
“prohibit the specification (including the withdrawal of specification)
of any defined area as a disposal site” or (2) “deny or restrict the use
of any defined area for specification (including the withdrawal of
specification).” In withdrawing the specifications here, EPA did not
clearly distinguish between the two powers. See Final Determination,
76 Fed. Reg. at 3127 (“EPA Region III published in the Federal
Register a Proposed Determination to prohibit, restrict, or deny the
specification or the use for specification (including withdrawal of
specification) of certain waters at the project site as disposal sites for
the discharge of dredged or fill material for the construction of the
Spruce No. 1 Surface Mine.”). It appears, however, that EPA
exercised the first authority—“to prohibit”/“withdraw[]”—given the
post-permit timing. See id. at 3128 (“EPA’s Final Determination
withdraws the specification of Pigeonroost Branch, Oldhouse Branch,
and their tributaries, as described in DA Permit No. 199800436-3
(Section 10: Coal River), as a disposal site for the discharge of
dredged or fill material for the purpose of construction, operation, and
reclamation of the Spruce No. 1 Surface Mine. This Final
Determination also prohibits the specification of the defined area
constituting Pigeonroost Branch, Oldhouse Branch, and their
tributaries for use as a disposal site associated with future surface coal
mining that would be expected to result in a nature and scale of
adverse chemical, physical, and biological effects similar to the Spruce
No. 1 mine.”).
10
See 20 Oxford English Dictionary 210 (2d ed.1989) (defining
“whenever,” used in “a qualifying (conditional) clause,” as:
“At whatever time, no matter when.”). Thus, the unambiguous
language of subsection 404(c) manifests the Congress’s intent
to confer on EPA a broad veto power extending beyond the
permit issuance.3 This construction is further buttressed by
subsection 404(c)’s authorization of a “withdrawal” which, as
EPA notes, is “a term of retrospective application.” Appellant
Br. 27. EPA can withdraw a specification only after it has
been made. See 20 Oxford English Dictionary 449 (2d
ed.1989) (defining “withdraw” as “[t]o take back or away
(something that has been given, granted, allowed, possessed,
enjoyed, or experienced)”). Moreover, because the Corps
often specifies final disposal sites in the permit itself—at least
it did here, see Spruce Mine Permit at 1 (“You are authorized
to perform work in accordance with the terms and conditions
specified below . . . .”) (emphasis added) (JA 984)—EPA’s
power to withdraw can only be exercised post-permit. Mingo
Logan’s reading of the statute would eliminate EPA’s express
statutory right to withdraw a specification and thereby render
3
Based on the plain meaning of the statutory language, EPA has
consistently maintained this interpretation for over thirty years. See
Section 404(c) Procedures, 44 Fed. Reg. 58,076, 58,077 (Oct. 9, 1979)
(“The statute on its face clearly allows EPA to act after the Corps has
issued a permit; it refers twice to the ‘withdrawal of specification,’
which clearly refers to action by EPA after the Corps has specified a
site (e.g. issued a permit or authorized its own work).”); Final
Determination of the Administrator Concerning the North Miami
Landfill Site Pursuant to Section 404(c) of the Clean Water Act at 1-2
(Jan. 26, 1981) (JA 239-40) (exercising 404(c) authority “to restrict
the use of [of the North Miami Landfill] for specification (including
the withdrawal of specification) as a disposal site” almost five years
after Corps issued permit therefor). The Corps has made clear by
joining EPA in this litigation that it agrees with EPA’s interpretation.
See supra p. 7.
11
subsection 404(c)’s parenthetical “withdrawal” language
superfluous—a result to be avoided. See Corley v. United
States, 556 U.S. 303, 314 (2009) (applying “one of the most
basic interpretative canons, that a statute should be construed
so that effect is given to all its provisions, so that no part will
be inoperative or superfluous, void or insignificant”) (brackets
and quotation marks omitted).
Notwithstanding the unambiguous statutory language,
Mingo Logan presses its own view of the language, the
statutory structure and section 404’s legislative history to
maintain that the Congress intended to preclude post-permit
withdrawal. We find none of its arguments persuasive.
First, Mingo Logan argues that the statutory language
itself contemplates that specification occurs before (rather than
when) the permit issues and therefore can (and must) be
withdrawn pre-permit. We find no such intent in the statutory
directive Mingo Logan quotes—that “each such disposal site
shall be specified for each such permit by the Secretary . . .
through the application of guidelines developed by the
Administrator, in conjunction with the Secretary.” 33 U.S.C.
§ 1344(b). This language is at least as consistent with
specification by the Corps at the time the permit issues as it is
with pre-permit specification. Moreover, as noted earlier, see
supra p. 10, the Corps expressly “specified” the final sites in
the Spruce Mine Permit itself. Nor does the permitting
process—including the “extensive coordination process during
which EPA can review the Corps’s statement of
findings/record of decision,” Appellee Br. 31—require that the
specification be made before the permit issues. During the
permitting process, the disposal sites are proposed,
reviewed—perhaps even “specified,” as Mingo Logan
contends—but the final specifications are included in the
permit itself.
12
Second, Mingo Logan asserts EPA’s interpretation
conflicts with section 404 “as a whole.” Id. at 35. Mingo
Logan claims, for example, that “EPA’s reading obliterates the
choice Congress made to give the permitting authority with all
of its attributes to the Corps, not EPA.” Id. at 36. While it is
true that subsections 404(a)-(b) unambiguously authorize the
Secretary to issue a discharge permit—and to specify the
disposal site(s) therefor—section 404(b) makes equally clear,
as explained supra pp. 8-11, that the Administrator has, in
effect, the final say on the specified disposal sites “whenever”
he makes the statutorily required “unacceptable adverse
effect” determination. Thus, insofar as site specification may
be considered, as Mingo Logan asserts, an “attribute[]” of the
permitting authority, the statute expressly vests final authority
over this particular attribute in the Administrator.
Mingo Logan also contends that EPA’s interpretation
“tramples on provisions like sections 404(p) and 404(q) that
are intended to give permits certainty and finality.” Appellee
Br. 36. Subsection 404(p) provides: “Compliance with a
permit issued pursuant to [section 404], including any activity
carried out pursuant to a general permit issued under this
section, shall be deemed compliance, for purposes of
[enforcement actions brought under] sections 1319 and 1365
of [title 33] . . . .” 33 U.S.C. § 1344(p).4 According to Mingo
Logan, “absent . . . permit violations or public interest
considerations, the permittee can rely on the permit shield of
section 404(p).” Appellee Br. 37. But again, section 404(c)’s
language is plain with regard to its enumerated “unacceptable
adverse effects”: the Administrator retains authority to
4
Sections 1319 and 1365 of title 33 authorize an action by,
respectively, (1) EPA against a violator of, inter alia, the terms of a
section 404 permit; and (2) a citizen against a violator of a CWA
effluent limitation or against EPA for failure to perform a non-
discretionary “act or duty” under the CWA. 33 U.S.C. §§ 1319, 1365.
13
withdraw a specified disposal site “whenever” he determines
such effects will result from discharges at the sites. And when
he withdraws a disposal site specification, as he did here, the
disposal site’s “terms and conditions specified” in the permit,
see Spruce Mine Permit at 1 (JA 984), are in effect amended
so that discharges at the previously specified disposal sites are
no longer in “[c]ompliance with” the permit—although the
permit itself remains otherwise in effect to the extent it is
usable.5 Moreover, as EPA notes, subsection 404(c) was
enacted in 1972 and its plain meaning did not change when
404(p) was enacted five years later. Appellant Br. 33-34. As
Mingo Logan acknowledges, if “the text of section 404(c)
clearly and unambiguously gave EPA the power to act
post-permit”—a reading it rejects—then section 404(p)
“cannot be read to implicitly overturn section 404(c).”
Appellee Br. 39 (citing Appellant Br. at 34 (citing Vill. of
Barrington, Ill. v. STB, 636 F.3d 650, 662 (D.C. Cir. 2011))).
As we have repeatedly stated throughout this opinion, the text
of section 404(c) does indeed clearly and unambiguously give
EPA the power to act post-permit. Thus, subsection 404(p)
does not implicitly limit section 404(c)’s scope. Nor does
EPA’s express statutory authority to act post-permit interfere
with subsection 404(q)’s directive that the Secretary enter into
5
In this case for example, EPA left intact the specification as
disposal site of “the Right Fork of Seng Camp Creek and its tributaries
. . . in part because some of those discharges have already occurred
and because the stream resources in Right Fork of Seng Camp Creek
were subject to a higher level of historic and ongoing human
disturbance than those found in Pigeonroost Branch or Oldhouse
Branch.” Final Determination, 76 Fed. Reg. at 3127 n.1.
In addition, EPA has made clear that a permittee may not be
penalized for discharges that occurred in compliance with the permit
before the effective date of the withdrawal of the specification.
14
agreements with other agency heads “to minimize, to the
maximum extent practicable, duplication, needless paperwork,
and delays in the issuance of permits under this section” and
“to assure that, to the maximum extent practicable, a decision
with respect to an application for a permit under subsection
(a) of this section will be made not later than the ninetieth day
after the date the notice for such application is published under
subsection (a) of this section.” 33 U.S.C. § 1344(q) (emphases
added). The enumerated obligations apply only pre-permit
and are therefore unaffected by EPA’s post-permit actions.
Finally, Mingo Logan argues that the legislative history
“confirms that Congress intended EPA to act under section
404(c), if at all, prior to permit issuance.” Appellee Br. 42. In
particular, it relies on the statement of then-Senator Edmund
Muskie that
prior to the issuance of any permit to dispose of spoil,
the Administrator must determine that the material to
be disposed of will not adversely affect municipal
water supplies, shellfish beds, and fishery areas
(including spawning and breeding areas), wildlife or
recreational areas in the specified site. Should the
Administrator so determine, no permit may issue.
118 Cong. Rec. at 33,699, reprinted in Legislative History at
177 (emphasis added). “Assuming legislative history could
override the plain, unambiguous directive” of section 404(c)
and “putting to one side the fact that this was the statement of
a single member of Congress,” the quoted language is “not
necessarily inconsistent with” EPA’s interpretation. See
Natural Res. Def. Council v. EPA, 706 F.3d 428, 437 (D.C.
Cir. 2013) (quotation marks and brackets omitted); see also
Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740, 752 (2012)
(“[T]he views of a single legislator, even a bill’s sponsor, are
not controlling.”). That EPA should review the preliminary
specifications pre-permit to determine whether discharges will
15
have the required “unacceptable adverse effect”—as EPA in
fact did here—does not mean it is foreclosed from doing so
post-permit as well—as it also did here.6 “Thus, ‘this case
does not present the very rare situation where the legislative
history of a statute is more probative of congressional intent
than the plain text.’ ” Va. Dep’t of Med. Assistance Servs. v.
U.S. Dep’t of Health & Human Servs., 678 F.3d 918, 923
(D.C. Cir. 2012) (quoting Consumer Elecs. Ass’n v. FCC, 347
F.3d 291, 298 (D.C. Cir. 2003)) (brackets omitted).
For the foregoing reasons, we reverse the district court
insofar as it held that EPA lacks statutory authority under
CWA section 404(c) to withdraw a disposal site specification
post-permit. Because the district court did not address the
merits of Mingo Logan’s APA challenge to the Final
Determination and resolution of the issue is not clear on the
present record, we follow our ususal practice and remand the
issue to the district court to address in the first instance. See
Friends of Blackwater v. Salazar, 691 F.3d 428, 434 n.* (D.C.
Cir. 2012) (citing Piersall v. Winter, 435 F.3d 319, 325 (D.C.
Cir. 2006)).
So ordered.
6
Similarly, post-permit withdrawal is not precluded by 33 C.F.R.
§ 323.6(b) (“The Corps will not issue a permit where the regional
administrator of EPA has notified the district engineer and applicant
in writing pursuant to 40 CFR 231.3(a)(1) that he intends to issue a
public notice of a proposed determination to prohibit or withdraw the
specification, or to deny, restrict or withdraw the use for specification,
of any defined area as a disposal site in accordance with section 404(c)
of the Clean Water Act.”).