Vetoing wetland permits under section 404(c) of the Clean Water Act: a history of inter-federal agency controversy and reform.

• Author: Blumm, Michael C.
• Position: Introduction through III. The Initial Eleven Section 404(c - 1985

INTRODUCTION I. A BRIEF HISTORY OF SECTION 404 II. THE SECTION 404 PERMIT PROGRAM A. The Section 404(b)(1) Guidelines B. The Section 404(c) "Veto" Regulations III. THE INITIAL ELEVEN SECTION 404(C) VETOES: 1981-1990 A. The North Miami Landfill: Protecting Mobile River and Bay (1981) B. The Norden Waste Storage and Recycling Site: Protecting the Mobile River and Bay (1984) C. The Jack Maybank Site: Saving Jehossee Island and Associated Fisheries (1985) D. The Bayou aux Carpes Site: Protecting Barataria Bay (1985) E. The Attleboro Mall: Upholding the Presumption Against Non-Water Dependent Uses in Sweedens Swamp (1986) F. The Russo Development Corporation Site: Mitigating for Lost Wildlife Habitat in the Meadowlands (1988) G. The Henry Rem: Preserving East Everglades Wetlands from Agricultural Development (1988) H. The Lake Alma Impoundment: Conserving the Hurricane Creek Watershed (1988) I. James City County Water Supply Dam: Protecting the Ware Creek Watershed (1989) J. The Big River Dam: Preserving the Watershed (1990) K. The Two Forks Dam: Protecting the South Platte Basin and Changing Water Supply Thinking (1990) IV. RECENT DISPUTES INVOLVING SECTION 404(C) VETOES A. Yazoo Pumps Project: Protecting the Yazoo Backwater (2008) B. The Spruce No. 1 Surface Mine: Curbing Mountaintop Mining (2011) C. The Pebble Mine: Preserving Bristol Bay Salmon Fishery (ongoing) CONCLUSION Introduction

The Clean Water Act's (CWA) section 404 permit program, which regulates the discharge of dredged or fill material into the nation's navigable waters, (1) has been the subject of headline news due to recent controversies involving mountain-top mining in West Virginia (2) and a proposed copper and gold mine in Alaska that would be the world's largest. (3) Fear over restored 404 permitting has been at the root of the virulent opposition to the U.S. Environmental Protection Agency's (EPA) proposed definition of "waters of the United States," which the U.S. House of Representatives voted to oppose in 2014. (4) Congress even voted to overturn federal guidance on farming activities that the statute exempts from regulation. (5)

In truth, the 404 program has been controversial since its inception in 1972. (6) Congress enacted section 404 as an exception to EPA's control of water pollutant discharges to preserve the U.S. Corps of Engineers' (Corps) preexisting regulation of activities affecting navigation under the 1899 Rivers and Harbors Act. (7) The full geographic scope of the 404 program did not become apparent until 1975, when a federal court ruled that the program included all the waters subject to permit requirements under the companion section 402 program for discharges of water pollution from point sources administered by EPA. (8) The Corps responded to the court's decision by claiming that federal permits would be required for a variety of farming and ranching activities. (9) The ensuing political uproar made the 404 permit program unpopular in agricultural circles (indeed, it still is), but the program survived. (10)

The 404 program remains the subject of controversy because requiring federal permits for discharges of dredged or fill material in all waters of the United States involves the Corps in both regulating developments affecting navigation and also protecting ecologically significant rivers, estuaries, and wetlands. (11) The latter--land-water areas that are inundated at least periodically, and which are some of the most biologically productive areas on earth (12)--have proved especially controversial because wetlands often have high development value. (13) Supporters of the federal program point to the fact that state and local control had produced millions of acres of destroyed wetlands, and conserving the remaining wetlands required federal control. (14)

Challenges to the scope of the 404 program have reached the Supreme Court several times. In 1985, the Court held that the program reached wetlands adjacent to traditionally navigable waters (15) but reserved judgment on wetlands that are isolated from navigable waters. (16) Over a decade-and-a-half later, the Court denied 404 jurisdiction over a wetland whose only connection to interstate commerce was due to its use by migratory birds. (17) Then, in 2006, the Court decided that in order to be subject to the 404 program, a wetland must either be connected by waters that contain a relatively permanent surface flow (18) or have a significant nexus with navigable waters, such that the "wetlands' [have] significance for the aquatic system," (19) In response, in May 2015, EPA and the Corps responded promulgated a new definition of "waters of the United States" that preserved permit jurisdiction over many of waters that the Court's decisions called into question, (20)

Although Congress granted authority to the Corps to issue 404 permits when it carved out the 404 program from EPA permit jurisdiction in the 1972 law, (21) it gave EPA two important oversight roles concerning the Corps' permit program. First, it authorized EPA to promulgate "guidelines," in conjunction with the Corps, to govern the issuance of 404 permits. (22) Second, Congress authorized EPA to "prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and ... to deny or restrict the use of any defined area" the discharge or dredged or fill material at defined sites in waters of the United States where the discharge would have "an unacceptable adverse impact on ... fisheries, municipal water supplies, wildlife, and recreational areas." (23) This so-called EPA veto has been used quite infrequently--only thirteen times--over the last forty years. (24) This veto authority by one federal agency over another has always been controversial and was called into question by a least one recent district court decision. (25)

Perhaps 404(c) authority has been so infrequently used over the past four decades because it is quite unusual for Congress to deputize one federal agency to in effect forbid actions authorized by another regulatory agency. (26) True, under the Endangered Species Act (ESA), federal wildlife agencies have authority to prohibit actions approved by other federal agencies that jeopardize the continued existence of listed species, (27) but the ESA regulations encourage the wildlife agencies to develop "reasonable and prudent alternatives" that allow the acting agency's proposal to proceed without jeopardy, (28) However, this sort of accommodation principle is not evident in the regulations implementing section 404(c), (29) Moreover, the ESA leaves final decision-making authority with the federal action agency, not with the wildlife agencies, (30) Thus, 404(c) exists as an almost singular example of one federal agency overruling another agency.

Although section 404(c) has been infrequently invoked, we believe the provision is central to the successful operation of the 404 program because it has ensured that EPA and ecological concerns predominate over economic factors in 404 permit decision-making, There is some tension in 404 permit criteria, as the Corps' regulations call for evaluating projects on the basis of a "public interest review" (31)--a free-wheeling balancing of economic and environmental matters--while the statutorily prescribed 404(b) guidelines are ecologically oriented, (32) The existence of EPA's section 404(c) veto authority has prevented economic factors from overriding environmental concerns in Corps' permitting and has, we believe, been a material factor in the maturation of the Corps as an environmental regulatory agency, The evidence lies in the fact that during the period from 1981 to 1990, there were eleven 404(c) vetoes, but none at all between 1991 and 2007. This record demonstrates that EPA and the Corps now interpret the goals of the 404 program quite similarly, an unlikely result three decades ago. (33) This institutional evolution is a significant, if overlooked, development in modern environmental law.

The three recent 404(c) actions do not undermine this assertion, as all involve the following unusual circumstances: (i) a longstanding effort to proceed with a traditional local flood control program; (2) a Corps permit issued several years before; and (3) a proposed project for which the company had not yes applied for a permit. (34) These recent 404(c) controversies illustrate the continuing importance the provision provides for environmental protection but may mask the significant transformation of the Corps that we believe this history of the 404(c) veto authority demonstrates, In short, the twenty...