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Administrator Pruitt Issues Memo to Increase Regulatory Certainty in Permitting Process

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WASHINGTON – The U.S. Environmental Protection Agency (EPA) is taking an important step toward updating the regulations governing EPA’s role in permitting discharges of dredged or fill materials under section 404 of the Clean Water Act (CWA). In a memorandum to the Office of Water and Regional Administrators, EPA Administrator Scott Pruitt outlined changes that EPA will propose that would increase predictability and regulatory certainty for landowners, investors, businesses, and other stakeholders

“Today’s memo refocuses EPA on its core mission of protecting public health and the environment in a way that is fair and consistent with due process,” said EPA Administrator Scott Pruitt. “We must ensure that EPA exercises its authority under the Clean Water Act in a careful, predictable, and prudent manner.”

EPA’s current regulations on the implementation of section 404(c) of the CWA allow the Agency 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.

The robust National Environmental Policy Act explicitly requires federal agencies to consider environmental effects from proposed projects, and include opportunities for public review and comment. Additionally, in the four decades since EPA’s regulations were last revised, the environmental statutory and regulatory landscape has changed dramatically. Given these existing protections and significant changes, updating EPA’s authority under section 404(c) will advance EPA’s core mission of protecting human health and the environment while improving predictability and regulatory certainty.

EPA’s proposal, after undergoing interagency review, will be available for public review and comment.

Read the memorandum.