EPA's Clean Water Act Section 404(c): Veto Authority
Section 404(c) of the Clean Water Act
authorizes EPA to restrict or prohibit the use of an area as a disposal
site for dredged or fill material if the discharge will have unacceptable
adverse effects on municipal water supplies, shellfish beds and fishery
areas, wildlife or recreational areas. The process is shown to the right.
Because Section 404(c) actions have mostly been taken in response to
unresolved permit applications, this type of action is frequently referred
to as an EPA "veto" of the U.S. Army Corps of Engineers permit. EPA has
completed only 11 "veto" actions out of an estimated 150,000 permit applications
received since the regulations went into effect in October 1979.
An EPA Regional Administrator initiates the action if he or she determines
that the impact of a proposed permit activity is likely to result in
- significant degradation of municipal water supplies (including surface
or ground water) or
- significant loss of or damage to fisheries, shellfishing, or wildlife
habitat, or recreation areas.
Section 404(c) "Veto" Process
Intent to issue notice of Proposed Determination
The EPA Regional Administrator states his or her intention to issue a
public notice of a Proposed Determination to withdraw, prohibit, deny,
or restrict the specification of a defined area for discharge of dredged
or fill material.
Notice of Proposed Determination
(within 15 days)
If the Regional Administrator is not satisfied that no unacceptable adverse
effects will occur, a notice of the Proposed Determination is published.
The Proposed Determination begins the process of exploring whether unacceptable
adverse effects will occur.
Public comment period
(generally between 30 and 60 days)
A public hearing is usually held during the comment period.
Recommended Determination or withdrawal
(within 30 days of the public hearing or, if no public hearing is held,
within 15 days of the end of the comment period)
The Regional Administrator prepares a Recommended Determination to withdraw,
prohibit, deny, or restrict the specification of a defined area for disposing
of dredged or fill material. Alternatively, he or she withdraws the Proposed
Determination.
Review of Recommended Determination
(30 days)
The EPA Regional Administrator forwards the Recommended Determination
and the administrative record to the EPA Assistant Administrator for Water.
Final Determination
(60 days after receipt of the Recommended Determination)
The EPA Assistant Administrator affirms, modifies, or rescinds the Recommended
Determination and publishes notice of the Final Determination in the Federal
Register.
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