D.C. Circuit Holds EPA Can Invalidate a Clean Water Act Section 404 Permit After It Is Issued

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.


8 Regional Councils to Meet in DC

The Pacific Council will host a meeting of the Council Coordination Committee (CCC) consisting of the eight Regional Fishery Management Council (RFMC) chairs, vice chairs, and executive directors and its subcommittees in May 2013. The intent of this meeting is to discuss issues of relevance to the Councils, including: budget issues, CCC meeting protocols, Managing Our Nation's Fisheries 3 (MONF3) conference results, Endangered Species Act transparency, electronic monitoring, allocation review process, Department of Commerce Office of the Inspector General report action plan, new environmental review process, other topics of concern to the RFMC, and decisions and follow-up activities.

The meeting will begin at 10 a.m. on Monday, May 6, 2013, and recess at 5:30 p.m. or when business is complete; reconvene at 1:30 p.m. on Thursday, May 9, 2013 and recess at 5 p.m. or when business is complete; and reconvene at 9 a.m. on Friday, May 10, 2013 and adjourn by 5:30 p.m. or when business is complete.


MAFAC May 9 &10 Meeting

This notice sets forth the schedule and proposed agenda of a forthcoming meeting of the Marine Fisheries Advisory Committee (MAFAC). The members will discuss and provide advice on issues outlined under SUPPLEMENTARY INFORMATION below.

The meeting will be held May 9, 2013 from 1 p.m. to 5 p.m. and May 10, 2013, from 8 a.m. to 5 p.m.

NOPC Responds to Release of National Ocean Policy Final Implementation Plan

Concerns Remain Over Potential Impacts

NACO is a member of the NOPC, which is an organization of diverse interests united to ensure that the implementation of the new National Ocean Policy is done in such a way that it is helpful rather than harmful to the National interest, including the interests of commercial and recreational users of the oceans and marine-related natural resources. NOPC membership in particular represents entities and sectors that support tens of millions of jobs and contribute trillions of dollars to the U.S. economy.

Following an initial review of the National Ocean Policy Final Implementation Plan released earlier today (4-16-13), significant questions and concerns remain about whether continued implementation of this initiative will adversely impact commercial and recreational activities across the United States.  In response to the plan’s release, National Ocean Policy Coalition Executive Director Brent Greenfield issued the following statement:

“Since it was first proposed in 2009, commercial and recreational groups, state and local officials, Members of Congress, and citizens across the nation have voiced concerns that the National Ocean Policy could result in new federal directives, bureaucratic layers, and regulatory uncertainties that stand in the way of jobs and economic and recreational activities.  Although the final document released today appears to take a more practical approach than the 2010 Executive Order and the draft plan proposed in 2012, many of the same concerns remain today.

Final National Pollutant Discharge Elimination System General Permit for Discharges Incidental to the Normal Operation of a Vessel

The VGP applies to owners and operators of non-recreational vessels that are 79 feet and greater in length. Currently, charter boats are not defined as recreational vessels in the clean water act.

 This action applies to vessels operating in a capacity as a means of transportation that have discharges incidental to their normal operation into waters subject to this permit, except recreational vessels as defined in Clean Water Act section 502(25). For a discussion of applicability of this permit to fishing vessels greater than 79 feet in length and to ballast water discharges regardless of length see section II.A below 


MEDMAC Vacancy Announced


The United States Coast Guard is requesting applications from qualified candidates seeking consideration for appointment as members to the Merchant Mariner Medical Advisory Committee (MEDMAC). MEDMAC provides advice to the United States Coast Guard on matters related to medical certification determinations for issuance of licenses, certificates of registry, and merchant mariners' documents; medical standards and guidelines for the physical qualifications of operators of commercial vessels; medical examiner education; and medical research.

The Merchant Mariner Medical Advisory Committee (MEDMAC) is an advisory committee chartered under the Federal Advisory Committee Act. The Committee's purpose is to advise the Secretary on matters related to medical certification determinations for issuance of licenses, certificates of registry, and merchant mariners' documents; medical standards and guidelines for the physical qualifications of operators of commercial vessels; medical examiner education; and medical research.


Engine Products Group ask Supreme Court to Take Up E15 Case

The Engine Products Group, is asking the U.S. Supreme Court to reconsider a court of appeal's decision not to hear a case against the Environmental Protection Agency's allowance of E15, or gas with 15 percent ethanol, in the overall fuel supply.

The petition asks the Supreme Court to reconsider a D.C. Circuit Court of Appeals decision in August that none of the parties had standing in the case challenging the EPA's decision to grant partial waivers approving the sale of gasoline containing E15. The petition asks the Supreme Court to accept the case for review. If the Supreme Court does so, the parties will then ask the court to reverse the appeals court's ruling and find the parties have the right to challenge the EPA's partial waiver decisions that allow the sale of E15 for some passenger cars and light trucks, but not older vehicles or in motorcycles, boats and off-road engines.


Merchant Mariner Medical Evaluation Program

The Coast Guard is seeking public comment regarding the merchant mariner medical evaluation program. Section 718 of the Coast Guard Authorization Act of 2012 directed the Commandant of the Coast Guard to submit to Congress an assessment of the Coast Guard National Maritime Center's merchant mariner medical evaluation program and alternatives to the program. Congress specifically asked the Coast Guard to include an analysis of how a system similar to the Federal Motor Carrier Safety Administration's National Registry of Certified Medical Examiners program, and the Federal Aviation Administration's Designated Aviation Medical Examiners program, could be applied by the Coast Guard in making medical fitness determinations for issuance of merchant mariners' documents. The Coast Guard will accept comments from the public on the perceived benefits and concerns with adopting a similar program for the medical evaluation of merchant mariners.

Comments and related material must either be submitted to our online docket via http://www.regulations.gov on or before May 2, 2013 or reach the Docket Management Facility by that date.


MPA Advisory to Hold Conference Call

Notice is hereby given of a meeting via web conference call of the Marine Protected Areas Federal Advisory Committee (Committee). The web conference calls are open to the public, and participants can dial in to the calls. Participants who choose to use the web conferencing feature in addition to the audio will be able to view the presentations as they are being given. Members of the public wishing to listen in should contact Lauren Wenzel at the email or telephone number below for the call-in number and passcode.

The meeting will be held Wednesday, May 1, from 1:00 to 3:30 p.m. EDT. These times and the agenda topics described below are subject to change. Refer to the Web page listed below for the most up-to-date meeting agenda.


Reauthorization of Magnuson Begins

The first in a series of congressional oversight hearings regarding Magnuson-Stevens Act reauthorization was held on March 13. As House Natural Resources Committee Chairman Richard "Doc" Hastings (R-Wash.) noted in his opening remarks at the hearing, "Judging by the number of bills to amend the Magnuson-Stevens Act introduced last Congress, there is certainly an interest among members — and their constituents — in modifying the act."

Those bills contain a number of ideas for amending Magnuson: modifying the annual catch limit requirement; adding flexibility to stock rebuilding timelines; adding transparency to the regional fishery management councils and their science and statistical committees; new uses for money collected from fisheries fines and penalties; modifying disaster assistance provisions; and a definition and restrictions on catch share management programs.