by Karl Coplan

In case you haven’t heard, yesterday EPA Administrator Lisa Jackson exercised her authority under Clean Water Act section 404(c) of the Clean Water Act, and revoked a section 404 permit issued by the Army Corps of Engineers for a major mountaintop removal mine in West Virginia. EPA’s press release is here, and its determination is here.

Environmentalists have been fighting for a long time to get EPA to take responsibility for the environmental destruction of entire river systems and mountain ranges in the Appalachians. The mountaintop destruction industry has been winning most of these battles in the last two presidential administrations — both the Clinton and Bush administrations backed the regulations that assigned CWA permitting responsibility for mountaintop destruction to the Corps of Engineers instead of EPA.

Clean Water Act section 404(c) has always given the Administrator the discretionary authority to revoke a section 404 permit that would have detrimental effects on drinking water, wildlife habitat, or recreation — but this authority has been exercised sparingly by EPA, and never, previously, to block a mountaintop removal mine. It is a major victory for the environmental groups that have been fighting to save the Appalachians for decades to have an agency exercise its discretion to protect the environment rather than to ignore the destruction.

EPA’s authority to revoke a Corps permit issued under section 404 is discretionary –the Administrator “is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site” when she finds objectionable environmental impacts, but is not required to do so. It is heartening to see an EPA administrator with the guts to exercise her authority in the face of bipartisan, industry backed opposition.

The continuing crime, when it comes to section 404 permits for mountaintop destruction mining, is the fact that states continue to issue Clean Water Act section 401 water quality certifications for these mines (necessary before the Corps can issue a 404 permit). Any certification that a mountaintop removal mine does not violate water quality standards when it completely buries stream headwaters under contaminated rubble denies reality. Unlike the EPA administrator’s review under section 404(c), these certifications are not supposed to turn on administrative discretion — if an activity will violate water quality standards (as mountaintop destruction mines do) then the State must deny the certification.