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Section 404 of the Clean Water Act

Memo: Updating the EPA's Regulations Implementing Clean Water Act Section 404(c)

On June 26, 2018, the U.S. Environmental Protection Agency (EPA) signed a memorandum to the Office of Water and Regional Adminstrators outlining changes that EPA will propose to update the regulations governing EPA's role in permitting discharges of dredged or fill materials under Section 404 of the Clean Water Act (CWA). 

EPA’s current regulations implementing CWA section 404(c) allow EPA to veto at any time a permit issued by the U.S. Army Corps of Engineers (USACE) or an approved state that allows for the discharge of dredged or fill material at specified disposal sites. The memo directs EPA’s Office of Water to develop a proposed rulemaking that would consider the following changes:

  • Eliminating the authority to initiate the section 404(c) process before a section 404 permit application has been filed with the USACE or a state, otherwise known as the “preemptive veto.”
  • Eliminating the authority to initiate the section 404(c) process after a permit has been issued by the USACE or a state, otherwise known as the “retroactive veto.”
  • Requiring a Regional Administrator to obtain approval from EPA Headquarters before initiating the section 404(c) process.
  • Requiring a Regional Administrator to review and consider the findings of an Environmental Assessment or Environmental Impact Statement prepared by the USACE or a state before preparing and publishing notice of a proposed determination.
  • Requiring EPA to publish and seek public comment on a final determination before such a determination takes effect.
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