In a June 26 memorandum, Scott Pruitt, administrator of the Environmental Protection Agency, initiated a regulatory update proceeding that would change EPA’s role in permitting discharges of dredged or fill materials under section 404(c) of the Clean Water Act.
Currently, section 404(c) allows EPA to veto at any time a permit issued by the U.S. Army Corps of Engineers or an approved state regarding the discharge of dredged or fill material at specified disposal sites. Yet Pruitt said in the memo he is “concerned that the mere potential” for EPA’s use of its section 404(c) authority “before or after the permitting process” could “chill economic growth by short-circuiting the permitting process.”
For that reason, “changing the current regulations would help to ensure that EPA exercises its authority in a careful, predictable and prudent manner,” he noted.
From a transportation perspective, dredging is key to removing sediments and debris from the bottom of lakes, rivers, harbors, and other bodies of water to keep channels open for barge and ship movements.
Permit and contracting issues, however, can delay dredging efforts – as in the case of dredging work originally planned for this spring and summer off the Keweenaw Peninsula in Michigan that had to be put off by the Michigan Department of Natural Resources (DNR).
In 2017, the EPA provided $3.1 million to the Army Corps to design and carry out dredging of the Buffalo Reef trough, a project which was scheduled to begin in May this year. But permitting issues over the construction of a “control mechanism” for the sands removed via the dredging work may delay it until 2022, with completion two years after that.
“Concerns involving real estate and dredging natural sands versus stamp sand from an underwater trough area have resulted in changes to the proposed project,” noted Steven Check, a project manager with the U.S. Army Corps of Engineers in Detroit, in a DNR press release. “These concerns have required the reworking of bid documents and potential modifications to the DNR permit, which has resulted in unexpected delays.”
To reduce the incidences of similar permit delays is one reason why EPA’s Pruitt is directing the agency’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 Corps 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 Corps 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 Corps 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.
“These regulations were last revised 40 years ago at a time in our history when environmental safeguards and analytical methods were far less developed than they are today,” Pruitt stressed in his memo.
“The EPA’s regulations should reflect today’s permitting processes and modern-day methods and protections, including the robust existing process under the National Environmental Policy Act that already requires federal agencies to consider the environment and related social and economic effects of their proposed actions, while providing opportunities for public review and comment,” he explained.
“This long-overdue update to the regulations has the promise of increasing certainty for land owners, investors, businesses and entrepreneurs to make investment decisions while preserving the EPA’s authority to restrict discharges of dredge or fill material that will have an unacceptable adverse effect on water supplies, recreation, fisheries and wildlife,” Pruitt added.