EPA drafting rule to curb its veto power — sources

By Ariel Wittenberg, Dylan Brown | 08/17/2018 01:04 PM EDT

EPA is working on a regulation to limit the agency’s ability to nix water pollution permits.

An aerial view of Bristol Bay in Alaska.

An aerial view of Bristol Bay in Alaska. Robert Glenn Ketchum/Natural Resources Defense Council

This story was updated.

EPA is working on a regulation to limit the agency’s ability to nix water pollution permits.

Agency sources told E&E News the regulation will follow limits outlined in a June memo from former EPA Administrator Scott Pruitt.


Under the Clean Water Act, the Army Corps of Engineers is the permitting agency for dredging and filling in waterways and wetlands, but Section 404(c) of the law grants EPA the ability to restrict or veto permits.

Until Pruitt, EPA policy did not explicitly prevent the agency from moving forward with vetoes before, during or after the permitting process.

The memo forbids EPA from acting before applications are filed with the Army Corps or after a permit is issued (Greenwire, June 27).

Pruitt’s action came after years of conservative outrage over the Obama administration’s two uses of the veto authority. In the case of the Spruce coal mine in West Virginia, the veto was issued years after the corps’ permit was issued. In the case of the Pebble Mine in Alaska, action preceded a mining proposal.

Pruitt’s memo earned its own outcry from environmental groups and Democrats.

Following his departure from the agency, Senate Environment and Public Works ranking member Tom Carper (D-Del.) and House Transportation and Infrastructure Committee ranking member Peter DeFazio (D-Ore.) wrote a letter to acting EPA Administrator Andrew Wheeler urging him to rescind the document.

The pair said the memo is "in opposition to the will of Congress" and that Section 404(c) of the Clean Water Act "provides EPA with clear authority" to veto a project whenever the agency determines it would have an unacceptable adverse effect on aquatic resources (E&E Daily, July 20).

EPA sources, who spoke with E&E News on the condition of anonymity, say the agency is planning to submit a proposed rule nixing pre-emptive and retroactive vetoes to the White House for review by the end of December.

An EPA spokeswoman confirmed after publication that the agency is "continuing its work to evaluate updates to the regulations governing EPA’s role in the permitting process under section 404c of the Clean Water Act in order to increase predictability and provide regulatory certainty for landowners, investors, businesses and other stakeholders."

Action against Spruce sparked debate, years of litigation and congressional efforts against retroactive vetoes. Ultimately, the U.S. Court of Appeals for the District of Columbia Circuit ruled they were legal under a strict reading of the law.

The debate over pre-emptive vetoes intensified in 2014, when the Obama EPA, relying on a watershed assessment, proposed restrictions to protect Alaska’s Bristol Bay from mining. The proposal was made before the company behind the Pebble mine had formally submitted a permit application.

The Trump administration lifted that proposal long enough for Pebble LP to submit its permit application to the Army Corps, but has not completely withdrawn the watershed assessment. That move infuriated Pruitt’s conservative allies, who are now taking their case to Wheeler (Greenwire, July 31).

Pebble opponents have called on the acting chief to recuse himself because his former lobbying firm set up the meeting between Pruitt and the mining company just before Pruitt ordered his staff to start the process of tossing the 2014 restrictions — a move he would later abandon. EPA said Wheeler would not be recusing himself from matters involving Pebble.

On Aug. 2, Pebble leaders met with EPA’s second in command, Henry Darwin, at agency headquarters in Washington, D.C., according to Darwin’s online calendar.

Pebble CEO Tom Collier declined to comment on the meeting, but said a potential rulemaking was not discussed.

"From where I sit," he said, "I think that getting rid of retroactive and pre-emptive vetoes is a smart thing to do, and I hope they follow through with a rulemaking."