Preemptive Strike—404(c) Veto Authority Under the Clean Water Act

The expectation of future development of a large copper-gold-molybdenum deposit in southwest Alaska has raised the possibility that the Environmental Protection Agency (“EPA”) will exercise its authority to preemptively veto issuance of a Section 404 permit under the Clean Water Act. Concerned with potential impacts of large scale mining activity on the fisheries of Bristol Bay, several southwest Alaska tribes, commercial fishing groups, and others have written to EPA requesting that the agency exercise its veto authority to preemptively remove the region from 404 permitting. In response to those requests, EPA has initiated a scientific assessment of the Bristol Bay fishery and potential impacts from large-scale development with the stated purpose of establishing the scientific foundation for any decisions EPA may make in the future. EPA expects to issue its draft assessment for public comment in Spring 2012 with the final assessment scheduled for late Summer 2012. Initiation of the biological assessment shows EPA is taking a hard look at the region and that potential impacts from large scale development are on its radar. However, it is too early to tell if EPA is considering the requests for a preemptive veto, which would be a sweeping and unprecedented exercise of its authority.

Section 404 of the CWA prohibits the discharge of dredged or fill material into waters of the United States without a permit issued by the United States Army Corps of Engineers (“USACE”). Waters of the United States are broadly defined by regulation to include interstate wetlands, and USACE has traditionally exercised its jurisdiction over a wide range of often isolated water bodies. 33 C.F.R. § 328.3(a)(2). The scope of that jurisdiction has been and continues to be controversial, with EPA and USACE issuing joint guidance last year. (See "New Guidance on Clean Water Act Jurisdiction: Longer Federal Reach, Less Certainty" for discussion regarding the agencies joint guidance and links to more detailed information.)

In applying for a Section 404 permit, a permittee must demonstrate that: (1) there is no practicable alternative to the proposed activity with less impact on the aquatic ecosystem; (2) the proposed activity will not have significant adverse impacts on the aquatic ecosystem; (3) all appropriate and practicable mitigation steps have been taken; and (4) the proposed activity will not violate other state or federal laws. 40 C.F.R. § 230.10. USACE will review a proposed project and alternatives to the proposal, determining whether a permittee has taken steps to avoid wetland impacts, minimized potential wetland impacts, and provided compensation for unavoidable impacts. While USACE administers the day-to-day Section 404 program, the Environmental Protection Agency (“EPA”) develops and interprets the policy and criteria employed by USACE in its evaluation of permit applications and retains the authority to prohibit, deny, or restrict the use of any defined area as a disposal site. 33 U.S.C. § 1344(b) & (c).

EPA’s authority to prohibit or deny a permit, overriding USACE’s permitting authority, arises under Section 404(c) of the CWA and is generally referred to as EPA’s “veto authority.” EPA may initiate the 404(c) veto process if it determines that the impact of a proposed permit presents “unacceptable adverse effects,” defined in relevant part as likely to result in significant loss of or damage to fisheries, shellfishing, wildlife habitat, or recreation areas. 40 C.F.R. § 231.2(e). By regulation, EPA may exercise its Section 404(c) authority before a permit is applied for, while an application is pending, or after a permit has been issued. 40 C.F.R. § 231.1(c). However, litigation is currently pending regarding EPA’s ability to retroactively veto a permit USACE has already issued. Mingo Logan Coal Co., Inc. v. United States Environmental Protection Agency, Case No. 1:10-cv-00541-ABJ (D. D.C.). EPA’s use of its veto authority is rare, with only 13 examples despite USACE’s processing approximately 80,000 permits per year. See EPA, “Clean Water Act, Section 404(c) ‘Veto Authority.’” Those interested in following developments of EPA’s watershed assessment can sign up for notifications by EPA from EPA’s Bristol Bay web page. A link to join the Bristol Bay mailing list can be found under the “Contact Us” heading.