In a ruling that adds to the complexity of the federal regulatory landscape, the United States Court of Appeals for the District of Columbia held that the Environmental Protection Agency ("EPA") has the authority to retroactively disapprove dredge and fill permits issued by the U.S. Army Corps of Engineers ("Corps") under section 404 of the Clean Water Act. As a result of the decision, even after a regulated entity lawfully obtains a section 404 permit from the Corps, at any time during the life of that permit EPA can exercise its authority – independent from the Corps – to revoke the permit. The decision further complicates the already byzantine process of obtaining authorizations necessary for public works and private development projects.
Under section 404, any person seeking to discharge dredged or fill material into waters within the Corps’ jurisdiction must secure a permit. Subsection 404(a) provides that the Secretary of the Army, who acts through the Corps, "may issue permits ... at specified disposal sites" for the dredging or filling of navigable waters. Subsection 404(c) states that EPA "is authorized to prohibit the specification ... of any defined area as a disposal site...." Thus, the Corps can issue a permit and identify where the waste can be disposed of, but EPA can veto the disposal site.