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April 14
House Committee Passes Bill Limiting EPA Veto Authority

On April 9, the House Transportation and Infrastructure Committee passed H.R. 524, a bill that prohibits the U.S. Environmental Protection Agency (EPA) from retroactively denying a Clean Water Act (CWA) Section 404 permit after final issuance. The bill passed by a vote of 34-20 with four Democrats – Reps. Cheri Busto (D-Ill.); Andre Carson (D-Ind.); Rick Nolan (D-Minn.); and Nick Rahall (D-W.Va.) – supporting the bill. 

A Section 404 permit regulates the discharge of dredged or fill materials into a “water of the U.S.”  A number of counties hold Section 404 permits for roadside ditch and flood control channel maintenance activities. Section 404 permits can be time consuming and expensive for counties to obtain and counties often have to start planning for permit renewal soon after they are originally granted.

H.R. 524 stems from Mingo Logan Coal Co.v. EPA, a federal appeals court case in which EPA retroactively vetoed a Section 404 permit three years after it was issued (while the Army Corps of Engineers oversees the Section 404 dredge-and-fill permit, EPA has veto authority). Prior to the permit issuance, EPA had expressed concerns about the impact to downstream waters; however, ultimately EPA chose to allow the Army Corps of Engineers (Corps) to approve the permit.

Mingo Logan challenged that ruling in the courts, arguing that EPA did not have the authority to reverse a permit once issued. In April 2013, a federal appeals court ruled in favor of EPA’s veto authority, and last month the Supreme Court declined to hear Mingo Logan, shuttling the case back to the U.S. District Court in Washington D.C. to assess whether EPA correctly followed legal veto protocol. NACo has been closely watching this case and its implications for local governments holding Section 404 permits.

Contact: Julie Ufner at or 202.942.4269


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