The U.S. Environmental Protection Agency (“EPA”) announced on June 27, 2018 that Administrator Scott Pruitt wants to do away with the agency’s power to veto permits allowing material from mining and infrastructure projects to impact waters of the U.S.

Pruitt directed the agency to put together a proposal to change regulations controlling the agency’s authority under the Clean Water Act (“CWA”) section 404c. Section 404c currently allows the EPA to veto any permits issued by the U.S. Army Corps of Engineers (“Army Corps”) or a state for discharging dredge or fill material.

The proposal would require the EPA regional administrators to: 1) get approval from the agency to begin the process for blocking a permit, 2) consider environmental assessments prepared by the Army Corps, and 3) publish and seek public comment on a final decision to stop a permit before the decision goes into effect.

Pruitt’s goal in pushing for updated regulations is to reflect today’s permitting process and modern-day methods and protections, including the robust existing processes under the National Environmental Policy Act (“NEPA”) that require federal agencies to consider environmental effects of their proposed actions. The potential of EPA’s use of section 404c could influence investment decisions and chill economic growth by short-circuiting the permitting process. This proposal, along with recent actions by Pruitt, are in an effort to ensure that EPA exercises its authority under environmental statutes in a careful, predictable, and prudent manner.