On August 13, the U.S. Environmental Protection Agency (EPA) held a pre-proposal state and local government outreach meeting to receive feedback on the agency’s plan to propose revisions to the Clean Water Act’s (CWA) Section 404(c) permissions, which gives the agency “veto authority” under the Section 404 program. During the meeting, the EPA released a PowerPoint presentation outlining the current Section 404(c) processes for vetoes and provided potential revisions under consideration.
The Section 404 program regulates the discharge of dredged or fill material into a “water of the U.S.” These permits are often required for road and levee construction, beach nourishment projects, commercial building and land reclamation.
Under Section 404(c), the EPA has the authority to veto Section 404 permits whenever the EPA Administrator determines that the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife or recreational areas. EPA’s use of the veto authority is very rare. According the EPA, there have been 30 Section 404(c) cases initiated by the EPA since 1972, with 13 cases resulting in modified Section 404 permits. To put into perspective, it is estimated that nearly 2 million Section 404 permits have been issued by the Army Corps since the 1980s.
The EPA is seeking input on potential revisions to the Section 404(c) process. During the presentation, the agency listed four areas in which they are seeking input:
- Should the EPA’s Section 404(c) regulations be revised to identify considerations for when the agency initiates a Section 404(c) review, either before a Section 404 permit application has been submitted or after a Section 404 permit has been issued?
- Should the EPA’s Section 404(c) regulations be revised to identify how EPA Regional Offices coordinate with EPA Headquarters prior to taking action on the first three steps of the 404(c) review process?
- Should the EPA’s Section 404(c) regulations be revised to reference the permit elevation procedures established pursuant to Section(q) of the Clean Water Act if applicable?
- Should the EPA’s Section 404(c) regulations be revised to describe a specific process for how to modify or withdraw a Section 404(c) Final Determination?
EPA is accepting pre-proposal comments through September 13, 2019. Comments can be submitted to 404cRuleStates@epa.gov. In addition, EPA will hold an informational webinar on September 4, 2019 from 2:30 to 4:00 p.m. Eastern Time. If you wish to participate in the webinar, please register at: https://tinyurl.com/404cRuleIntergov.