Judicial Limitation of the EPA\u27s Oversight Authority in Clean Water Act Permitting of Mountaintop Mining Valley Fills

Mountaintop removal mining operations in the Appalachian region have expanded significantly in recent decades. The practice decimates the mountain ecosystems by leveling forests, filling headwater streams, and producing significant runoff of heavy metals, sediment, and other pollutants that impair the aquatic environment of entire watersheds. Yet environmental permitting of the practice is relatively limited. A recent trend in litigation aimed at halting mining operations has involved challenging permits that authorize the discharge of mining overburden into headwater streams pursuant to the Clean Water Act (CWA). The Army Corps of Engineers has assumed jurisdiction over such discharges under section 404 of the CWA, asserting that overburden is “fill material.” Initial litigation on the matter challenged the Corps’ assumption of jurisdiction, asserting instead that overburden is a “pollutant,” the discharge of which is regulated by the Environmental Protection Agency (EPA) under section 402 of the CWA. After the courts upheld the Corps’ interpretation that overburden is fill, the issue became the degree to which section 404 allows or requires the EPA to exercise environmental oversight of the Corps’ permitting process. The EPA has recently attempted to increase its oversight role by establishing procedures to review permit applications before the Corps issues the permits and by retroactively “vetoing” existing permits that it has found result in irreparable environmental damage. Those actions have been subjected to challenges by the mining industry, which have produced court rulings constraining the EPA’s oversight authority. In this Note, I argue that Congress did not intend for mining overburden to fall within the purview of the Corps’ section 404 jurisdiction, and that the cases affirming the Corps’ assumption of such jurisdiction were wrongly decided. Assuming, however, that those cases will not be overturned, I argue that the EPA must be afforded the ability to exercise the oversight authority inherent in section 404 to ensure that the Corps’ permits for mountaintop removal mining valley fills do not result in undue environmental damage. I assert that the recent decisions in National Mining Association v. Jackson and Mingo Logan Coal Co. v. EPA improperly read limits into the EPA’s oversight authority, and that the courts of appeals should overturn those decisions. Absent the EPA’s second layer of environmental review of section 404 permitting, the fragile Appalachian landscape may be permanently destroyed as a consequence of mountaintop removal mining