EPA to limit veto power over water permits

Key Takeaways

EPA Administrator Scott Pruitt, who resigned July 5, released a memo June 26 restricting the EPA’s power to veto water permits. The action is a reversal of previous administrations’ use of the agency’s veto power and goes into effect immediately.

Under the Clean Water Act (CWA), the Army Corps of Engineers (Army Corps) issues water permits, known as Section 404 permits, for dredge and fill activities in “Waters of the U.S.” jurisdictional areas. These permits may be required for road and levee construction, beach nourishment projects, commercial building and land reclamation. However, CWA also gives EPA the authority to veto Section 404 permits it believes would be hazardous or harmful to waterways, which halts the project. As major owners, users and regulators of water resources and infrastructure, counties are often involved in the Section 404 permitting process.

Administrator Pruitt’s memo limits the agency’s veto use and requires regional offices to gain approval from EPA headquarters before attempting to block a Section 404 permit. Additionally, the memo directs the agency to undertake a public comment period before vetoing a Section 404 permit.

Since 1980, the EPA has used its veto power on 13 occasions, including two controversial vetoes under the Obama Administration. In 2011, EPA vetoed permits for a mountaintop coal-removal operation in West Virginia seven years after the Army Corps approved them, which was challenged in court. In 2014, the U.S. Court of Appeals ruled that EPA has the authority to retroactively veto Section 404 permits. In a separate instance in 2014, EPA rejected a Section 404 permit before an application was even submitted to the Army Corps for review.