EPA's Role in Permitting and EPA's Veto Authority

• Author: Stephen M. Johnson
• Pages: 291-311

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Chapter 8

EPA’s Role in Permitting and EPA’s Veto

Authority

I. EPA’s Role in the Section 404 Permitting Process

As a result of Congressional compromises, the Clean Water Act vests significant authority

for administering and enforcing the Section 404 permit program in the U.S. Army Corps of

Engineers and the U.S. Environmental Protection Agency. In general, the two agencies

have significantly different missions, so it is not surprising that they have adopted

conflicting positions, at times, in interpreting and administering the Section 404 program.

While the Corps administers the permitting program on a day to day ba sis and has the

ultimate authority to issue or deny Section 404 permits, Congress gave EPA several

important duties and responsibilities with respect to the program. First, Congress gave

EPA the authority, in conjunction with the Corps, to write the 404(b)(1) Guidelines, which

are the rules that the Corps uses to review permit applications when determining whether

to issue or deny permits and when determining the conditions to include in those permits.

See 33 U.S.C. § 1344(b)(1). The Guidelines were described in detail in Chapters 6 and 7 of

this book. Second, EPA provides comments to the Corps of Engineers during the permit

review process regarding the agency’s views on the application of the Guidelines to the

permit application, whether the permit should be issued or denied, and any conditions that

should be included in the permit, if issued. EPA’s role in the permitting process was

outlined in detail in Chapter 6 of this book. Third, while the Corps may have the ultimate

authority to issue or deny Section 404 permits, EPA is authorized to veto permits and

prohibit discharges of dredged or fill material in specific areas regardless of whether the

Corps determines a discharge is appropriate. See 33 U.S.C. § 1344(c). Not surprisingly, in

light of this authority, the Corps must give significant weight to the comments that EPA

provides during the Section 404 permit review process. EPA’s veto authority is discussed in

the next section of this Chapter. Fourth, the Clean Water Act authorizes both the Corps,

see 33 U.S.C. § 1344(s), and EPA, see 33 U.S.C. § 1319, to bring administrative actions

and to refer judicial actions to the Department of Justice to enforce the Section 404

permitting program. Those authorities, and the manner in which the agencies have divided

those responsibilities, are discussed in Chapter 10 of this book. In addition to the powers

outlined above, EPA also has authority, with the Corps, to determine whether a site is

within federal jurisdiction as “waters of the United States.” Chapter 4 of this book outlined

the manner in which the Corps and EPA have divided that responsibility.

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In order to facilitate efficient and timely processing of Section 404 permits by the Corps,

Congress directed EPA and the other agencies routinely involved in review of those permits

to enter into agreements with the Corps to “minimize ... duplication, needless paperwork,

and delays in the issuance of [Section 404] permits.” See 33 U.S.C. § 1344(q). The

agreement that EPA entered into with the Corps also includes dispute resolution provisions

to address the inevitable disagreements between the agencies in the permit review

process. The Section 404(q) MOA and dispute resolution processes are discussed in the

next section of this Chapter.

II. EPA’s Veto Authority

A. Authority and Procedures

Although Section 404(c) is often referred to as EPA’s “veto” authority, that provision grants

EPA broader authority to limit discharges of dredged of fill material than simply the authority

to “veto” a Section 404 permit. Section 404(c) provides:

The Administrator is authorized to prohibit the specification (including the withdrawal

of specification) of any defined area as a disposal site, and he is authorized to deny

or restrict the use of any defined area for specification (including the withdrawal of

specification) as a disposal site, whenever he determines, after notice and

opportunity for public hearings, that the discharge of such materials into such area

will have an unacceptable adverse effect on municipal water supplies, shellfish beds

and fishery areas (including spawning and breeding areas), wildlife, or recreational

areas.

33 U.S.C. § 1344(c). Thus, while EPA usually uses its Section 404(c) authority to veto

permits issued by the Corps, the agency has the authority to prohibit, deny, restrict, or

withdraw the specification of an area as a disposal site in a variety of contexts. EPA

retains that authority even if a State takes over administration of the Section 404 permit

program. See 40 C.F.R. § 231.1.

1. Section 404(q) and Elevation of

Permit Disputes

Although EPA has only exercised its

Section 404(c) authority 13 times in the

history of the Section 404 program, see

U.S. Environmental Protection Agency,

Chronology of 404(c) Actions, it usually

exercises it to “veto” a permit that the Corps is about to issue or has issued. In most cases,

EPA has raised concerns about the permitted activity during the comment period, before

Resources

EPA/Corps 404(q) MOA

EPA 404(q) fact sheet

Chronology of 404(q) elevations

EPA web page of 404(q) resources