[House Report 113-485]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-485
======================================================================
TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO CLARIFY THAT THE
ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION AGENCY DOES NOT HAVE THE
AUTHORITY TO DISAPPROVE A PERMIT AFTER IT HAS BEEN ISSUED BY THE
SECRETARY OF THE ARMY UNDER SECTION 404 OF SUCH ACT
_______
June 20, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Shuster, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
[To accompany H.R. 524]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 524) to amend the Federal Water
Pollution Control Act to clarify that the Administrator of the
Environmental Protection Agency does not have the authority to
disapprove a permit after it has been issued by the Secretary
of the Army under section 404 of such Act, having considered
the same, report favorably thereon without amendment and
recommend that the bill do pass.
CONTENTS
Page
Purpose of Legislation........................................... 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Legislative History and Consideration............................ 4
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Cost Estimate........................ 7
Performance Goals and Objectives................................. 8
Advisory of Earmarks............................................. 8
Duplication of Federal Programs.................................. 8
Disclosure of Directed Rule Makings.............................. 8
Federal Mandate Statement........................................ 8
Preemption Clarification......................................... 9
Advisory Committee Statement..................................... 9
Applicability of Legislative Branch.............................. 9
Section-by-Section Analysis of Legislation....................... 9
Changes in Existing Law Made by the Bill, as Reported............ 9
Purpose of Legislation
H.R. 524 amends the Federal Water Pollution Control Act to
provide that the Administrator of the Environmental Protection
Agency does not have the authority to disapprove a permit after
it has been issued by the Secretary of the Army under section
404 of the Act.
Background and Need for Legislation
THE CLEAN WATER ACT
In 1972, Congress passed the Federal Water Pollution
Control Act Amendments of 1972 (commonly known as the ``Clean
Water Act'' or the ``CWA''; 33 U.S.C. Sec. 1251 et seq.). The
objective of the CWA is to restore and maintain the chemical,
physical, and biological integrity of the Nation's waters. The
primary mechanisms for achieving this objective are the CWA's
general prohibition against the discharge of pollutants into
jurisdictional waterbodies, and the Act's permitting process
for such discharges, either through a National Pollutant
Discharge Elimination System (NPDES) permit (see CWA Sec. 402),
or through a separate permit program, for the discharge of
dredged or fill material into jurisdictional waterbodies,
including wetlands (see CWA Sec. 404).
The U.S. Environmental Protection Agency (EPA) has the
basic responsibility for administering and enforcing most of
the CWA, including the NPDES permit program, and the U.S. Army
Corps of Engineers (Corps) has lead responsibility for
administering the dredge or fill (wetlands) permit program
under section 404 of the CWA. However, the EPA does have a
complementary role in administering section 404, both in the
development of environmental guidelines (called the 404(b)(1)
guidelines) to provide a means of evaluating whether any
discharge of fill is environmentally acceptable, and through
its review under section 404(c) (discussed below). Under the
wetlands permitting program, the Corps has authority to issue
dredge or fill permits (typically for a permit term of five
years) for the discharge of materials into jurisdictional
waterbodies at specified disposal sites. It is unlawful for a
facility to discharge dredged or fill materials into a
jurisdictional waterbody unless the discharge is authorized by
and in compliance with a dredge or fill (section 404) permit
issued by the Corps.
EPA'S PERMIT VETO AUTHORITY UNDER CWA SECTION 404(C)
Even though the Corps has the lead responsibility to
implement the CWA's section 404 permit program, the EPA retains
residual authority under CWA section 404(c) to oversee, review,
and object to the Corps' issuance of section 404 permits for
the discharge of dredged or fill material into jurisdictional
waters, to ensure that such permitting decisions meet the
minimum requirements of the CWA. Section 404(c) of the CWA
confers the EPA authority, under specified procedures, to
prevent the Corps from authorizing a particular disposal site:
(c) The Administrator is authorized to prohibit the
specification (including the withdrawal of
specification) of any defined area as a disposal site,
and he is authorized to deny or restrict the use of any
defined area for specification (including the
withdrawal of specification) as a disposal site,
whenever he determines, after notice and opportunity
for public hearings, that the discharge of such
materials into such area will have an unacceptable
adverse effect on municipal water supplies, shellfish
beds and fishery areas (including spawning and breeding
areas), wildlife, or recreational areas. Before making
such determination, the Administrator shall consult
with the Secretary. The Administrator shall set forth
in writing and make public his findings and his reasons
for making any determination under this subsection (CWA
Sec. 404(c).)
To exercise this ``veto'' authority, the EPA must
determine, after notice and opportunity for public hearings,
that certain unacceptable adverse environmental effects on
municipal water supplies, shellfish beds, and fishery areas,
wildlife, or recreation areas would result. The EPA also must
consult with the Corps and make public its written findings and
reasons for any determinations it makes under Section 404(c).
Once the EPA has approved a Corps section 404 permit,
generally speaking, the implementation and interpretation of
the permit is left to the Corps. However, according to the U.S.
Court of Appeals for the D.C. Circuit, the EPA retains the
authority to ``prohibit, restrict or withdraw the specification
[of a disposal site under section 404(c)] ``whenever'' [the
Administrator of the EPA] makes a determination that the
statutory ``unacceptable adverse effect'' will result. (See
Mingo Logan Coal Co. v. U.S. EPA, 714 F.3d 608, 613 (D.C. Cir.
2013).)
EPA REVOCATION OF A SECTION 404 PERMIT
In the Mingo Logan Coal Co. case before the D.C. Circuit
Court of Appeals, the Mingo Logan Coal Company (Mingo Logan)
applied to the Corps for a permit under CWA section 404 to
discharge fill material in connection with the Spruce No. 1
surface mine project, located in Logan County, West Virginia.
Prior to the issuance of the permit, the project applicant
conducted a lengthy environmental review, in which the EPA
participated.
In 2007, the Corps issued the section 404 permit to Mingo
Logan. While the EPA did express concern with the terms of the
permit prior to its issuance, the agency did not object to the
permit at the time of its issuance. Subsequently, the mine
operated pursuant to, and in compliance with, the Section 404
permit.
In September 2009, almost two years after the Corps issued
the section 404 permit, the EPA requested that the Corps use
its discretionary authority to suspend, revoke, or modify the
permit that it had issued to Mingo Logan. The Corps rejected
the EPA's request, finding no grounds to suspend, revoke, or
modify the permit. In March 2010, the EPA then published a
Proposed Determination to prohibit, restrict, or deny the
authorized discharges to certain of the waters associated with
the Spruce project site, without alleging any violation of the
section 404 permit.
In January 2011, the EPA issued a Final Determination to
withdraw the discharge authorization, effectively revoking the
permit and halting development of the mine. This action to
revoke the permit was more than three years after the permit's
issuance. The EPA stated that it had the ability under the CWA
to initiate a section 404(c) action to retroactively withdraw a
discharge site specification in a permit even after permit
issuance. (See 75 Fed. Reg. 16788, 16790 (Apr. 2, 2010) (EPA
Notice of Proposed Determination To Prohibit, Restrict, or Deny
the Specification, or the Use for Specification (Including
Withdrawal of Specification), of an Area as a Disposal Site;
Spruce No. 1 Surface Mine, Logan County, WV).)
The permit holder challenged the EPA's revocation of the
Section 404 permit in federal district court. (See Mingo Logan
Coal Company Inc. v. U.S. EPA, 850 F.Supp.2d 133 (D.D.C.
2012).) The district court issued an opinion in 2012 that
overturned the EPA's retroactive withdrawal of the project's
permit discharge site specification. (See id.) In April 2013,
the U.S. Court of Appeals for the D.C. Circuit reversed the
district court, ruling that the EPA had not exceeded its
authority. (See Mingo Logan Coal Co. v. U.S. EPA, 714 F.3d 608
(D.C. Cir. 2013).) The permit holder then applied to the U.S.
Supreme Court to review the case, but in March 2014, the
Supreme Court announced it would not review the 2013 Appeals
Court decision. (See Mingo Logan Coal Co. v. U.S. EPA, No. 13-
599 (U.S. Mar. 24, 2014) (cert. denied).)
In response to the EPA's recent actions to withdraw the
discharge authorization for the Spruce project after issuance
of the project's permit, the bill's sponsor introduced H.R. 524
to provide that the EPA has the authority under section 404(c)
to withdraw a project's discharge site specification only prior
to the Corps' issuance of the 404 permit for the project. The
bill aims to address the concern that the EPA's authority to
undo a Corps section 404 permit action has the potential to
disrupt the finality and certainty of the CWA section 404
permit process, a process that is critical to a wide range of
industries and projects. There is concern that this lack of
certainty could chill future investments in vital
infrastructure and other development projects that require 404
permits.
Hearings
No hearings were held on H.R. 524.
In the 112th Congress, the Subcommittee on Water Resources
and Environment held a hearing on the EPA's surface mining
policies and related regulatory activities, including the EPA's
retroactive withdrawal of the discharge authorization of the
Spruce Mine's section 404 permit.
Legislative History and Consideration
On February 6, 2013, Representative David McKinley of West
Virginia introduced H.R. 524, a bill to provide that the
Administrator of the Environmental Protection Agency does not
have the authority to disapprove a permit after it has been
issued by the Secretary of the Army under section 404 of the
CWA.
On April 9, 2014, the Committee on Transportation and
Infrastructure met in open session to consider H.R. 524, and
ordered the bill reported favorably to the House by record vote
with a quorum present. The vote was 34 yeas to 19 nays. No
amendments were offered.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires each committee report to include the
total number of votes cast for and against on each record vote
on a motion to report and on any amendment offered to the
measure or matter, and the names of those members voting for
and against. During consideration of H.R. 524, a total of one
record vote was taken, which was on a final vote ordering the
bill reported. The bill was reported to the House with a
favorable recommendation after a record vote which was disposed
of as follows:
Committee Oversight Findings
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives does not apply where a cost estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974 has been timely submitted prior to the filing of the
report and is included in the report. Such a cost estimate is
included in this report.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
received the enclosed cost estimate for H.R. 524 from the
Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 17, 2014.
Hon. Bill Shuster,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 524, a bill to
amend the Federal Water Pollution Control Act to clarify that
the Administrator of the Environmental Protection Agency does
not have the authority to disapprove a permit after it has been
issued by the Secretary of the Army under section 404 of such
Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 524--A bill to amend the Federal Water Pollution Control Act to
clarify that the Administrator of the Environmental Protection
Agency does not have the authority to disapprove a permit after
it has been issued by the Secretary of the Army under section
404 of such Act
Section 404 of the Federal Water Pollution Control Act
(Clean Water Act) established a program to regulate the
discharge of dredged or fill material (for example, rock, sand,
soil, clay, plastics, construction debris, wood chips, or waste
from mining or other excavation activities) into waters of the
United States, including wetlands. Proposed activities that
could result in such discharges are regulated through a permit
and review process wherein the U.S. Army Corps of Engineers
(Corps) is responsible for making permitting decisions. Under
current law, the Environmental Protection Agency (EPA) has the
authority to revoke or modify permits issued by the Corps.
Enacting this legislation would prohibit EPA from revoking a
permit issued by the Corps under section 404 of the Clean Water
Act.
Based on information from EPA, CBO estimates that enacting
this legislation would have no significant effect on the
federal budget because EPA seldom revokes permits issued by the
Corps. Since 1972, EPA has revoked permits from the Corps for
only two projects.
Pay-as-you-go procedures do not apply to H.R. 524 because
enacting the bill would not affect direct spending or revenues.
H.R. 524 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Susanne S.
Mehlman. This estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Performance Goals and Objectives
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
performance goal and objective of this legislation is to
provide that the Administrator of the Environmental Protection
Agency does not have the authority to disapprove a permit after
it has been issued by the Secretary of the Army under section
404 of the CWA.
Advisory of Earmarks
Pursuant to clause 9 of rule XXI of the Rules of the House
of Representatives, the Committee is required to include a list
of congressional earmarks, limited tax benefits, or limited
tariff benefits as defined in clause 9(e), 9(f), and 9(g) of
rule XXI of the Rules of the House of Representatives. No
provision in the bill includes an earmark, limited tax benefit,
or limited tariff benefit under clause 9(e), 9(f), or 9(g) of
rule XXI.
Duplication of Federal Programs
Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013),
the Committee finds that no provision of H.R. 524 establishes
or reauthorizes a program of the federal government known to be
duplicative of another federal program, a program that was
included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-
139, or a program related to a program identified in the most
recent Catalog of Federal Domestic Assistance.
Disclosure of Directed Rule Makings
Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013),
the Committee estimates that enacting H.R. 524 does not
specifically direct the completion of any specific rule makings
within the meaning of section 551 of title 5, United States
Code.
Federal Mandate Statement
The Committee adopts as its own the estimate of federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act (P.L. 104-4).
Preemption Clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any Committee on a bill or joint
resolution to include a statement on the extent to which the
bill or joint resolution is intended to preempt state, local,
or tribal law. The Committee states that H.R. 524 does not
preempt any state, local, or tribal law.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act are created by this
legislation.
Applicability to the Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (P.L. 104-1).
Section-by-Section Analysis of Legislation
Section 1. Permits for Dredged or Fill Material
Section 1 amends section 404(c) of the CWA to provide that
the Administrator of the Environmental Protection Agency has
the authority to prohibit the specification (including the
withdrawal of specification) of any defined area as a disposal
site, or deny or restrict the use of any defined area for
specification (including the withdrawal of specification) as a
disposal site, under section 404(c) of the CWA only until such
time as the Secretary of the Army has issued a permit under
section 404 covering such area. Once the Secretary of the Army
has issued a section 404 permit for the use of an area as a
disposal site, the Administrator no longer has the authority to
prohibit, deny, restrict, or withdraw the use of such area as a
disposal site.
The bill does not alter the authority of the Corps to issue
a Section 404 permit, or to modify, suspend, or revoke a
section 404 permit should it find a violation of the permit.
The bill also does not change the requirements that the EPA
must satisfy in order to exercise its ``veto'' authority under
CWA section 404(c).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
H.R. 524, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
FEDERAL WATER POLLUTION CONTROL ACT
* * * * * * *
TITLE IV--PERMITS AND LICENSES
* * * * * * *
permits for dredged or fill material
Sec. 404. (a) * * *
* * * * * * *
(c) [The Administrator is authorized] Until such time as the
Secretary has issued a permit under this section, the
Administrator is authorized to prohibit the specification
(including the withdrawal of specification) of any defined area
as a disposal site, and he is authorized to deny or restrict
the use of any defined area for specification (including the
withdrawal of specification) as a disposal site, whenever he
determines, after notice and opportunity for public hearings,
that the discharge of such materials into such area will have
an unacceptable adverse effect on municipal water supplies,
shellfish beds and fishery areas (including spawning and
breeding areas), wildlife, or recreational areas. Before making
such determination, the Administrator shall consult with the
Secretary. The Administrator shall set forth in writing and
make public his findings and his reasons for making any
determination under this subsection.
* * * * * * *