[House Report 113-609]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-609
======================================================================
REGULATORY CERTAINTY ACT OF 2014
_______
November 12, 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
together with
DISSENTING VIEWS
[To accompany H.R. 4854]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 4854) to amend the Federal Water
Pollution Control Act to clarify when the Administrator of the
Environmental Protection Agency has the authority to prohibit
the specification of a defined area, or deny or restrict the
use of a defined area for specification, as a disposal site
under section 404 of such Act, and for other purposes, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Page
Purpose of the Legislation....................................... 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 5
Legislative History and Consideration............................ 5
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 10
New Budget Authority and Tax Expenditures........................ 10
Congressional Budget Office Cost Estimate........................ 10
Performance Goals and Objectives................................. 11
Advisory of Earmarks............................................. 11
Duplication of Federal Programs.................................. 11
Disclosure of Directed Rulemakings............................... 11
Federal Mandates Statement....................................... 12
Preemption Clarification......................................... 12
Advisory Committee Statement..................................... 12
Applicability to the Legislative Branch.......................... 12
Section-by-Section Analysis of the Legislation................... 12
Changes in Existing Law Made by the Bill, as Reported............ 13
Purpose of the Legislation
H.R. 4854, the ``Regulatory Certainty Act of 2014,'' amends
the Federal Water Pollution Control Act to provide that the
Administrator of the Environmental Protection Agency (EPA) does
not have the authority to restrict or deny the use of a
particular disposal site under section 404 of such Act before
the U.S. Army Corps of Engineers (Corps) has completed its
review of a 404 permit application or after the Corps has
issued the permit.
Background and Need for the 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 (usually 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 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).
In general, once the EPA has approved a Corps section 404
permit, 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 expressed concerns 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).)
EPA PREEMPTIVE VETO OF A SECTION 404 PERMIT
In January 2014, the EPA released an assessment of the
Bristol Bay watershed in southwestern Alaska on how future
development, and in particular large scale mining projects, may
affect Bristol Bay's salmon fishery and water quality in the
region. (See Final EPA Report, An Assessment of Potential
Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska (EPA
910-R-14-001A-C) (A Notice of Availability was published in the
Federal Register at 79 Fed. Reg. 3369 (Jan. 21, 2014)).) The
assessment questioned the future of salmon habitat should a
large scale mine be opened in the region.
As a result of that assessment, the EPA initiated a
regulatory process involving a possible mining project of the
Pebble deposit, a large ore body in the Bristol Bay watershed
in southwest Alaska. This regulatory process could lead to the
first-ever ``preemptive'' section 404(c) ``veto'' of a
development project, even though the mining project developer
has yet to apply for a 404 permit. EPA has based its actions to
preemptively restrict mining in the region on section 404(c) of
the CWA.
In July 2014, the EPA issued a proposal that would place
restrictive conditions on mine development in the Bristol Bay
region. The EPA proposed to restrict all discharges of dredged
or fill material related to mining that would result in
specified losses of streams and connected wetlands, lakes, and
ponds with documented salmon occurrence, and result in
specified streamflow alterations. (See EPA, Proposed
Determination to Restrict the Use of an Area as a Disposal
Site; Pebble Deposit Area, Southwest Alaska (A Notice of
Availability and Public Hearing was published in the Federal
Register at 79 Fed. Reg. 42314 (July 21, 2014)).) The EPA is
currently soliciting public comments and holding public
hearings on the proposed restrictive conditions, and will make
a final determination.
The proposed restrictions, when finalized, would
effectively dictate the terms of any mining project in the
region--or deny the permitting by the Corps of Engineers of
such project--before developers have proposed the project and
applied for the permit--in effect ``pre-emptively'' vetoing
such a project.
LEGISLATION TO CLARIFY WHEN EPA CAN VETO A PROJECT UNDER CWA SECTION
404(C)
The EPA's moves under CWA section 404(c) to
``preemptively'' veto the prospective project in Alaska, along
with the EPA's actions to revoke (``retroactively'' veto) parts
of the Spruce project's issued permit, both have raised
concerns about the lack of finality and certainty of the CWA
section 404 permit process, and the effect this lack of
certainty could have on future investments in vital
infrastructure and other development projects that require 404
permits. The CWA section 404 permit process is critical to a
wide range of industries and projects.
In response to the EPA's recent actions to withdraw the
discharge authorization for the Spruce project after issuance
of the project's permit, and intent to preemptively veto the
project in Alaska, the bill's sponsor introduced H.R. 4854 to
clarify when the EPA has the authority to restrict or deny the
use of a particular disposal site under section 404 of the CWA.
The bill provides that the EPA has the authority under section
404(c) to withdraw a project's discharge site specification
only after the Corps has completed its review of a 404 permit
application and prior to the Corps' issuance of the 404 permit
for the project. Under the bill, the EPA does not have the
authority to disapprove a section 404 dredge or fill permit for
a disposal site before the Corps has completed its review of a
404 permit application or after the Corps has issued the
permit.
Hearings
On July 15, 2014, the Subcommittee on Water Resources and
Environment held an oversight hearing to receive testimony from
representatives of private sector stakeholders and of the legal
academic community on the EPA's interpretation of its permit
veto authority under section 404 of the CWA.
Legislative History and Consideration
On June 12, 2014, Subcommittee on Water Resources and
Environment Chairman Bob Gibbs, along with 13 original co-
sponsors, introduced H.R. 4854, the ``Regulatory Certainty Act
of 2014,'' to clarify when the Administrator of the EPA has the
authority to restrict or deny the use of a particular disposal
site under section 404 of the CWA.
On July l6, 2014, the Committee on Transportation and
Infrastructure met in open session to consider H.R. 4854, and
ordered the bill reported favorably to the House by a roll call
vote with a quorum present. The vote was 33 yeas to 22 nays.
Representative Tim Bishop offered an amendment in
Committee. The amendment would extend the time the EPA has to
veto a section 404 permit from not fewer than 30 consecutive
days to 365 consecutive days or such shorter period as the EPA
determines is sufficient to conduct a review of a proposed
disposal site. The amendment was defeated by voice vote with a
quorum present. Representative Garamendi also offered an
amendment in Committee. The amendment would retain authority in
EPA to veto a disposal site if substantial new evidence is
provided that indicates that the discharge of materials into
the disposal site is having an unacceptable adverse effect on
municipal water supplies, shellfish beds, fishery areas,
wildlife, or recreational areas. The amendment was defeated by
a roll call vote with a quorum present. The vote was 31 nays to
24 yeas.
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. 4854, two record
votes were taken.
The first record vote was taken on an amendment offered in
Committee by Representative Garamendi. The Committee disposed
of this amendment by record vote as follows:
The other record vote was taken on reporting the bill to
the House with a favorable recommendation. 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. 4854 from the
Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 5, 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. 4854, the
Regulatory Certainty Act of 2014.
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. 4854--Regulatory Certainty Act of 2014
Section 404 of the Clean Water Act (CWA) 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 the nation's waters and 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. The Environmental Protection Agency (EPA), under
section 404(c) of the CWA, has the authority to restrict,
prohibit, deny, or withdraw areas specified in permits before
or after the permits are issued by the Corps.
H.R. 4854 would amend the CWA to restrict the time during
which EPA may modify those permits. Specifically, H.R. 4854
would require the Corps to issue a notice to EPA that they have
completed all procedures for processing an application for a
permit; EPA would then have 30 days to revoke or modify the
permit.
Under current law, EPA seldom modifies or revokes permits
issued by the Corps--since 1972 EPA has used this authority 13
times. Based on information from EPA, CBO expects that a
shortened review period as proposed by this legislation would
probably not significantly reduce EPA's expenses to review
permits. Under the bill, EPA would retain its authorities under
section 404(c) of the CWA during the 30-day period following
processing of a permit application by the Corps. CBO expects
that, for projects posing the most concern for EPA, it is
likely that EPA would incur permit review costs whether or not
H.R. 4854 is enacted.
Pay-as-you-go procedures do not apply to H.R. 4854 because
enacting the bill would not affect direct spending or revenues.
H.R. 4854 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 EPA does not have the
authority to disapprove a permit before the Corps has completed
processing a CWA section 404 permit or after it has been issued
by the Corps.
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. 4854 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 Rulemakings
Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013),
the Committee estimates that enacting H.R. 4854 does not
specifically direct the completion of any specific rulemakings
within the meaning of section 551 of title 5, United States
Code.
Federal Mandates 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. 4854 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. Short title
Section 1 of H.R. 4854 designates the title of the bill as
the ``Regulatory Certainty Act of 2014.''
Section 2. Permits for dredged or fill material
Section 2 of the bill amends section 404(c) of the CWA to
clarify when the EPA has the authority to restrict or deny the
use of a particular dredge or fill disposal site under section
404 of the Act.
The period during which the EPA may 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, is limited to
the time period that (i) begins on the date that the Corps
provides notice to the EPA that the Corps has completed all
procedures for processing an application for a section 404
permit relating to the specification and is ready to determine,
in accordance with the record and applicable regulations,
whether the permit should be issued; and (ii) ends on the date
that the Corps issues the permit. Under the bill, the EPA does
not have the authority to disapprove or revoke a permit under
CWA section 404(c) before the Corps has completed its review of
a section 404 permit application or after the Corps has issued
the section 404 permit.
The bill begins the period during which the EPA can
``veto'' a project when the Corps has completed processing a
section 404 permit application and is ready to make a permit
issuance determination, to ensure that a project applicant has
had a reasonable opportunity to apply for a permit. Starting
the clock at this point would help to ensure that the EPA bases
its decision of whether to approve of or ``veto'' a permit on a
complete, project-specific administrative record (including the
environmental review) for the project in question. By ending
the period during which the EPA can ``veto'' a project when the
Corps issues a permit, the bill aims to ensure that a project
applicant can rely on the finality of the issued permit.
To help ensure that the EPA is sufficiently knowledgeable
of a project and has adequate time to make a decision of
whether to approve of or ``veto'' a section 404 permit, the
bill requires the Corps to give the EPA notice that the Corps
has completed all procedures for processing a permit
application and is ready to determine whether the permit should
be issued. The Corps also is required to ensure that the period
the EPA has to make a permit ``veto'' decision consists of not
fewer than 30 consecutive days.
The Corps has the discretion to provide the EPA with more
time than the 30 consecutive day minimum provided in the bill.
The bill does not mandate a longer minimum period of time in
order to minimize delays in issuing section 404 permits.
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. 4854, as reported, are shown as follows:
FEDERAL WATER POLLUTION CONTROL ACT
* * * * * * *
TITLE IV--PERMITS AND LICENSES
* * * * * * *
permits for dredged or fill material
Sec. 404. (a) * * *
* * * * * * *
[(c)] (c)(1) 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, during the period described in
paragraph (2) and 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.
(2)(A) The period during which the Administrator may
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 paragraph (1) shall--
(i) begin on the date that the Secretary provides
notice to the Administrator that the Secretary has
completed all procedures for processing an application
for a permit under this section relating to the
specification and is ready to determine, in accordance
with the record and applicable regulations, whether the
permit should be issued; and
(ii) end on the date that the Secretary issues the
permit.
(B) The Secretary shall ensure that the period described in
subparagraph (A) consists of not fewer than 30 consecutive
days.
(C) The Secretary may issue a permit under this section
only after the Secretary provides notice to the Administrator
in accordance with this paragraph.
* * * * * * *
DISSENTING VIEWS
I recognize the difference of opinion among Members of
Congress on the activities of Executive branch to protect
public health and the environment. Yet, I remain troubled by
the all-too-common tone taken by the Republican majority in
carrying out its oversight activities of the current
administration, especially as it pertains to implementation of
the Clean Water Act.
Too often, this Republican majority has elevated the
rhetoric surrounding controversial issues over the reality.
Take the record surrounding H.R. 4854 as an example.
On the day before the Committee markup of H.R. 4854, the
Subcommittee on Water Resources and Environment held a hearing,
entitled ``EPA's Expanded Interpretation of its Permit
Authority Veto under the Clean Water Act''--as though the U.S.
Environmental Protection Agency has created some new authority
by its actions where none previously existed. Similarly,
throughout this Committee report to accompany H.R. 4854, there
are references to EPA's ``first-ever `preemptive' veto,'' as
well as suggestions that EPA has arbitrarily or capriciously
exercised its 404(c) authority.\1\
---------------------------------------------------------------------------
\1\On September 30, 2014, the United States District Court for the
District of Columbia ruled that EPA's Final Determination of the U.S.
Environmental Protection Agency Pursuant to Sec. 404(c) of the Clean
Water Act Concerning Spruce No. 1 Mine, Logan County, West Virginia was
``reasonable, supported by the record, and based on considerations
within the agency's purview.'' See Mingo Logan Coal Company, Inc v.
U.S. EPA, U.S. Dist. Court. Dist. of Columbia (2014) (Civil Action No.
10-0541 (ABJ)).
---------------------------------------------------------------------------
As the former-Senator of New York, Daniel Patrick Moynihan,
once said, ``Everyone is entitled to his own opinion, but not
his own facts.''
Therefore, it is important that we evaluate H.R. 4854 we
all use the same set of facts to understand this legislation in
its historical context.
Here are the facts.
Fact number 1--Congress enacted the Clean Water Act in
1972, and provided the U.S. Army Corps of Engineers and EPA
complimentary roles in the implementation of the Federal
section 404 permit authority over discharges of dredged or fill
material at specified sites in waters of the United States,
including the adoption of EPA's 404(c) oversight
responsibility.
Fact number 2--Since enactment of the Clean Water Act, the
Corps has processed, on average, 60,000 section 404 permit
actions per year--resulting in over 2.5 million approved permit
actions since 1972. During that same period, EPA has exercised
its section 404(c) authority a total of 13 times. That is 13
permits in 42 years.
Fact number 3--Of the 13 times EPA has previously exercised
its 404(c) authority, three of these 404(c) actions were taken
after a Corps of Engineers permits were already issued--two
under Republican administrations, and once under a Democratic
administration. An additional 2 404(c) actions were taken in
the time period before a Clean Water Act permit was issued by
the Corps--both under a Republican administration.
I am enclosing, as part of these dissenting views, the
written testimony of Professor Patrick Parenteau, a law
professor who testified at the July 15, 2014 hearing on this
issue. This testimony summarizes the history and use of the
404(c) authority by both Republican and Democratic
administrations over the decades.
As history has shown, the EPA under the leadership of both
Republican and Democratic administrations have used its
Congressionally-authorized oversight authority over the section
404 program in a limited, and relatively-consistent manner. To
characterize the agency's recent actions related to section
404(c) as an ``expanded interpretation'' is simply not
supported by the facts.
It is fair for Members of Congress to have a difference of
opinion on how the Corps and EPA have carried out their Clean
Water Act responsibilities. However, when we use that
difference of opinion to mischaracterize or worse, to demonize,
the actions of these agencies, I believe we fail to uphold our
larger Congressional responsibilities.
While I recognize that those who projects and industries
may have been directly affected by these actions may have a
different view, I believe that these groups will have a
difficult time in arguing that the Federal agencies have
``abused'' this authority over the years.
In my view, EPA seems to have exercised its 404(c)
authority with restraint, acting only when the activities would
have an ``unacceptable adverse effect'' on the local
environment--the test that Congress established for the
agencies back in 1972. I do not believe a legitimate case has
been made to warrant the changes called for in H.R. 4854.
Accordingly, I respectfully oppose passage of H.R. 4854.
Tim Bishop,
Ranking Member,
Subcommittee on Water Resources and Environment.