&EPA United States Environmental Protection Agency Clean Water Ac Section 404fc) The Clean Water Act authorizes the U.S. Army Corps of Engineers (the Corps) (Section 404(a)) or an EPA approved state or tribe (Section 404(g)) to issue permits for discharges of dredged or fill material at specified sites in waters of the United States. Section 404(c), however authorizes EPA to restrict, prohibit, deny, or withdraw the use of an area as a disposal site for dredged or fill material if the discharge will ha\'e unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. "Veto Authority" Under Section 404(c), EPA may initiate a public process to prohibit or restrict the specification by the Corps or by a state or tribe of a site for the discharge of dredged or fill material. According to the Clean Water Act, Section 404(c) authority may be exercised before a permit is applied for, while an application is pending, or after a permit has been issued. Because Section 404(c) actions have mostly been taken in response to unresolved Corps permit applications, this type of action is frequently referred to as an EPA veto of a Corps permit. Although the Corps authorizes approximately 74,000 permit activities in the Nation's waters each year,1 EPA has used its Section 404(c) authority very sparingly, issuing only 14 final determinations since 1972. EPA has not used this authority in its oversight of EPA approved state or tribal programs. An EPA Regional Administrator initiates a 404(c) 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, wildlife habitat, or recreation areas. 1 Source: Annual U.S. Army Corps of Engineers reports to Congress for fiscal years 1987 through 2018. Section 404(c) "Veto" Process Intent to Issue Notice of Proposed Determination The EPA Regional Administrator notifies the permitting authority and the project proponent of EPA's 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 If the Regional Administrator is not satisfied that no unacceptable adverse effects will occur, a notice of the Proposed Determination is published in the Federal Register. 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 and forwards it along with the administrative record to the EPA Assistant Administrator for Water. Alternatively, the Regional Administrator withdraws the Proposed Determination. Corrective Action (within 30 days of receipt of the Recommended Determination) The EPA Assistant Administrator contacts the permitting authority and project proponent and provides them 15 days to take corrective action to prevent unacceptable adverse effects. Final Determination (within 60 days of 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. ------- Final Section 404(c) Veto Determinations The 14 Section 404(c) actions that EPA has finalized as of January 2023 have involved unacceptable adverse impacts from a variety of projects to a variety of aquatic resources including freshwater forested, emergent, and shrub wetlands; tidal freshwater and tidal estuarine wetlands; as well as streams, rivers, and lakes. Project Name Initiation and Final Determination Dates Location EPA Region State Corps District 14 Pebble Deposit Area Surface Copper-Gold Mine • Reinitiated January 27, 2022 • Final Determination issued January 30, 2023 10 AK Alaska 13 Spruce No. 1 Surface Mine Surface Coal Mine • Initiated October 16, 2009 • Final Determination issued January 13, 2011 3 WV Huntington 12 Yazoo Pumps Flood Control Project • Initiated February 1, 2008 • Final Determination issued August 31, 2008 4 MS Vicksburg 11 Two Forks Water Supply Impoundment • Initiated March 24, 1989 • Final Determination issued November 23, 1990 8 CO Omaha 10 Big River Water Supply Impoundment • Initiated August 24, 1988 • Final Determination issued March 1, 1990 1 Rl New England 9 Ware Creek Water Supply Impoundment • Initiated August 4, 1988 • Final Determination issued July 10, 1989 3 VA Norfolk 8 Lake Alma Dam and Recreational Impoundment • Initiated June 8, 1988 • Final Determination issued December 16, 1988 4 GA Savannah 7 Heriry Rem Estates Agricultural Conversion - Rockplowing • Initiated April 22, 1987 • Final Determination issued June 15, 1988 4 FL Jacksonville 6 Russo Development Corps Warehouse Development (After-the-fact permit) • Initiated May 26, 1987 • Final Determination issued March 21, 1988 2 NJ New York 5 Attleboro Mall Shopping Mall • Initiated July 23, 1985 • Final Determination issued May 13, 1986 1 MA New England 4 Bayou Aux Carpes Flood Control Project • Initiated December 17, 1984 • Final Determination issued October 16, 1985 6 LA New Orleans 3 Jack Maybank Site Duck Hunting/Aquaculture Impoundment • Initiated April 15, 1984 • Final Determination issued April 5, 1985 4 SC Charleston 2 Norden Co. Waste Storage/Recycling Plant • Initiated September 30, 1983 • Final Determination issued June 15, 1984 4 AL Mobile 1 North Miami Landfill/Municipal Recreational Facility • Initiated June 25, 1980 • Final Determination issued January 19, 1981 4 FL Jacksonville rsm EPA Clean Water Act Section 404(c) website: https://www.epa.gov/cwa-404/restriction-disDOsal-sites-under-cwa-section-404c EPA Clean Water Act Section 404(c) Fact Sheet: https://www.epa.goy/cwa-404/clean-water-act-seetion-404c-veto-authoritv Chronology of Final Section 404(c) Actions: lHtDs://wuw.cpa.gov/cwa-404/chronologv-c\Ya-scction-404c-aclions EPA Clean Water Act Section 404 website: https:/Avww.epa. gov/cwa-404 ------- |