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EPA Proposes Changes to its 404(c) Veto Power

EPA has announced its new regulatory agenda, and it's comprehensive. Included in it is a plan to rework the 404(c) regulations. I'll cover only that proposal in this blogpost. Here's the link to EPA's notice. https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST&currentPub=true&agencyCode=&showStage=active&agencyCd=2000&csrf_token=262A0E2A6CF6C8875916A01B16C438167D72CA30604177E717AD921D70BBA8AE75A858B46C180B417A8F2EDBA2FC419B23C8


The announcement says next to nothing about EPA's intentions: "This rulemaking will consider changes to the EPA's CWA section 404(c) review process that would govern the future use of the EPA's CWA section 404(c) authority." Given EPA's current deregulatory ambitions, it's fair to assume that it will trim EPA's 404(c) authority. That veto provision, while historically rarely used, has been very controversial at the Pebble Mine in Alaska and with Spruce Mine in W. Virginia. Given how late we are in this administration, if Trump is not reelected, it will be interested to see how many more of these significant rulemakings they can push out the door. Here's a link to the 404(c) proposal. https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202004&RIN=2040-AF88


Speaking of Pebble, EPA filed a brief in the 9th Cir. on Friday arguing that its decision to withdraw its 404(c) veto of the Pebble Mine 404 permit is "presumptively unreviewable," likening it to an enforcement action. The District Court had found in favor of EPA, dismissing the challenge to its withdrawal of the 404(c), and an appeal not surprisingly followed. See my April 20 blogpost for more on that. This will be an interesting argument to watch. EPA's enforcement discretion is unquestionably broad, but that doesn't mean its 404(c) authority is equally discretionary. A large public record is developed to support a 404(c) or its withdrawal. It may be a stretch to say that record is outside of APA review.


The 9th Cir. appeal no. is 20-35504 if you want to pull the brief off of Pacer.


Meanwhile, the Corps has completed its environmental review and concluded that issuance of a 404 permit for the mine would not cause undo harm to the environment. Expect an appeal. Here's a link that will lead you to the analysis. https://www.epa.gov/bristolbay



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