Introduction of House Bill to Amend Clean Water Act to Remove EPA Veto Authority

According to a report from Margaret Bauman in the Seward Phoenix LOG, Rep. Don Young, R-Alaska, recently introduced a bill to remove the U.S. Environmental Protection Agency’s (“EPA”) ability to veto a U.S. Army Corps of Engineers (“Corps”) decision regarding permits under the Clean Water Act. 

 

Recently, EPA proposed to exercise its authority under section 404(c) of the Clean Water Act to "veto" a permit which had already been issued for the Spruce No. 1 Mine by the Corps.  This proposed veto has been the subject of much debate in Central Appalachia as many argue that vetoing a previously issued permit is illegal and, if upheld, will cause irreparable damage to the coal industry. Many in the coal industry have expressed concern that the ability of EPA to change their minds about permits would cause immense uncertainty in the industry and the ability to mine.  This, in turn, would hinder investment in the industry.  The permit holder, Mingo Logan Coal Company, has filed an action in federal court in Washington DC to enjoin EPA from exercising its authority under 404(c) over an already issued permit, arguing that EPA is required to take action prohibiting the specification of particular areas for use as fill sites before a permit has been issued and a project started, as is the case at the Spruce No. 1 Mine. 

 

While the Corps issues permits for placing dredged material and/or fill material into an area defined as a disposal site, EPA can  "prohibit the specification of any defined area as a [fill] disposal site"  if it  determines that   there is an unacceptable adverse impact to municipal water supplies, wildlife, recreation areas, shellfish beds and fishery areas.  Young’s House Resolution 5992 would amend the federal Clean Water Act to remove EPA’s power to restrict the Corps authority to approve fill disposal areas.

 

Citing projects in Alaska which have been shut down or delayed by the EPA, such as a proposed metallic sulfide mine, Young argues that the lack of clear criterion as to what constitutes an unacceptable adverse impact as well as the expertise of the Corps in making these decisions compared to EPA’s lack of expertise support the need for this amendment.

 

The introduction of a bill seeking to remove EPA’s veto authority from an Alaskan Congressman offers support to the coal industry’s argument that EPA’s section 404 veto authority has far-ranging effects, outside of the coal industry.  While the debate over EPA’s veto authority has been centralized in Appalachia to date, it appears that those who support industries outside of coal mining are beginning to take notice. 

 

For more information on Young’s House Resolution 5992, please see Margaret Bauman’s article Proposed Clean Water Act amendments raise hackles from the Seward Phoenix LOG at http://thesewardphoenixlog.com/article/1031proposed_clean_water_act_amendments_raise.

 

This article was authored by Matthew S. Tyree, Jackson Kelly PLLC. For more information on the author see here.