Seyfarth Synopsis: Last week before his departure USEPA Administrator Pruitt notified the regulated community that he had directed the Agency to update regulations governing the Agency’s use of Section 404(c) veto power in permitting discharges of dredged or fill materials under Section 404 of the Clean Water Act.

The U.S. Environmental Protection Agency’s (USEPA) current regulations implementing Clean Water Act (CWA) section 404(c) allow the Agency to veto at any time during the permitting process a permit issued by the U.S. Army Corps of Engineers (USACE) under CWA section 404(a) that allows for the discharge of dredged or fill material at permitted sites.  USEPA has historically taken the position that it can preemptively veto a permit before, during or after a 404(a) application is filed or a permit is issued.

In a memorandum last week, USEPA Administrator E. Scott Pruitt directed the Office of Water to develop a proposed rulemaking that would end USEPA’s preemptory and retroactive 404(c) veto power. Administrator Pruitt said that it was his goal to refocus EPA “on its core mission of protecting public health and the environment in a way that is fair and consistent with due process.”  He continued that EPA “must ensure that EPA exercises its authority under the Clean Water Act in a careful, predictable, and prudent manner.”

Administrator Pruitt indicated that the “regulations were last revised nearly 40 years ago“ and “EPA’s regulations should reflect today’s permitting process and modern-day methods and protections, including the robust existing processes under the National Environmental Policy Act.”

Accordingly, the memo directs USEPA’s Office of Water to develop a proposed rulemaking that would consider the following changes:

• Eliminating the USEPA authority to initiate the section 404(c) process before a USACE 404(a) permit application has been filed with the USACE or a state, otherwise known as the “preemptive veto.”
• Eliminating the authority of USEPA to initiate the section 404(c) veto process after a USACE 404(a) permit has been issued by the USACE or a state, otherwise known as the “retroactive veto.”
• Requiring a Regional Administrator to obtain approval from USEPA Headquarters before initiating the section 404(c) veto process over a USACE 404(a) permit.
• Requiring a Regional Administrator to review and consider the findings of an Environmental Assessment or Environmental Impact Statement prepared by the USACE before preparing and publishing notice of a proposed determination.
• Requiring USEPA to publish and seek public comment on a final USEPA determination before such a determination takes effect.

We have previously blogged on related wetlands topics, including Supreme Court to Decide if Army Corps Initial Jurisdictional Determination to Regulate Wetlands Under CWA is Ripe for Judicial Review, Sackett v. EPA: Supreme Court Decides Unanimously In Favor Of Landowners, and New Wetlands Definition.