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
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 email@example.com or 202.942.4269