On March 30, 2018, EPA Administrator Scott Pruitt issued a memorandum eliminating the authority of Regional Administrators to veto decisions by the Army Corps of Engineers to grant a permit for impacts to streams or wetlands. The veto authority has been re-delegated to the U.S. EPA Administrator.
Any project that results in a discharge of dredged or fill material into waters of the U.S. must obtain a permit from the Army Corps of Engineers under 404 of the Clean Water Act (CWA). Under the CWA, EPA is given authority to potentially veto the Army Corps issuance of a 404 permit if EPA determines it the permit will allow unacceptable impacts to waters of the U.S.
Administrator Pruitt’s memo states the change in control was to “restore regulatory certainty and promote the rule of law.” However, the current regulatory uncertainty does not stem from vetoes of issued permits. Rather, the regulatory uncertainty stems from the ongoing litigation associated with the Obama Administrations Waters of the U.S. Rule which defined the scope of federal jurisdiction under the CWA. (See prior post) That uncertainty is likely to persist due to ongoing litigation in multiple courts.
EPA Spokesperson downplayed the significance of the memorandum:
This memo explains that jurisdictional determinations that raise significant issues or technical difficulties should be handled in a consistent and uniform manner, particularly during the WOTUS rulemaking,” EPA spokeswoman Liz Bowman said. “Regions will absolutely be involved in the process and work closely with the administrator’s office when doing the work to assess jurisdiction for very select, and often rare, cases.”
The authority under Section 404(c) of the CWA has rarely been used by EPA. According to EPA’s webpage, the authority has only been used thirteen (13) times since 1970.