Parker Moore Quoted in Law360 on Clean Water Act Permit Revocation Challenges

Principal Parker Moore (Washington, DC) was quoted in a July 20 article in Law360 titled "Arch's DC Circ. Loss Shows Need To Document Project Costs." The article discusses the backing of EPA's revocation of an Arch Coal mining unit's Clean Water Act permit by the U.S. Court of Appeals for the DC Circuit.

The article implies that if developers want to get a similar EPA decision overturned by arguing the agency failed to consider costs, they must document expenses incurred through reliance on their permits as early as possible. In the decision, the DC Circuit argued that EPA reasonably explained its decision to withdraw Mingo Logan's Clean Water Act Section 404 permit, awarded in 2007 by the U.S. Army Corps of Engineers, and rejected the company's argument that the agency failed to engage in "reasoned decision making" by ignoring costs.

Commenting on the decision, Parker said it could encourage EPA to try to conserve its resources by performing a less-than-comprehensive review of an initial, controversial permit decision and then perform a more searching analysis if the Corps ultimately issues a permit to which the agency objects.

"That's not at all what the Clean Water Act intended, and that's certainly not what the Section 404(c) authority was designed for," he said. "The ruling also creates a "perverse incentive" for permittees to immediately fill all Clean Water Act jurisdictional areas that are authorized by their permits so that they can quickly terminate permit coverage and limit the risk of a retroactive EPA veto."

He went on to note, "If you're moving in a more deliberative manner, you can identify the areas that you maybe don't have to impact and ways to preserve jurisdictional areas. Here, because you need to go ahead and secure the permit coverage that you have and create certainty for yourself, the best way to do that is fill in the jurisdictional areas that you're authorized to fill before EPA has a chance to veto it."

Mingo Logan could appeal the DC Circuit's decision, but Parker said that until these issues are resolved, project proponents should start work immediately after receiving authorization so that the permitted work can be completed as soon as possible and make sure they're raising cost, compliance and other issues early and often.

"The EPA has certainty whereas project proponents do not," he stated. "They know they can veto a permit whenever they feel like it, and project proponents know that the project they're developing could be subject to that veto irrespective of the work they've done. ... That, to me, is about an inequitable a policy as can be found in statutory law right now."

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