WATER POLLUTION: Rep. Gibbs expresses concerns about EPA veto power
Manuel Quiñones, E&E reporter
Published: Tuesday, November 24, 2015

A top Republican lawmaker is pressing U.S. EPA about the agency's authority to block the U.S. Army Corps of Engineers' Clean Water Act permits for dredge-and-fill activities.

"In recent years, EPA has taken a number of actions related to section 404(c) permits that have raised concerns for those who are pursuing activities depending on such permits," Rep. Bob Gibbs (R-Ohio), chairman of the House Transportation and Infrastructure Subcommittee on Water Resources and Environment, wrote EPA Administrator Gina McCarthy last week (link to Gibbs letter: http://ow.ly/V3PqT)

Gibbs pointed to EPA's 2011 veto of permits for Arch Coal Inc.'s Spruce mountaintop removal years after the Army Corps had issued its approvals.

He also mentioned EPA's move to limit development of the Pebble LP copper and gold mining project in the Bristol Bay region of southwestern Alaska prior to the permitting process.

"Similarly," Gibbs wrote, "EPA decided to oppose a road construction project in Marquette County, Michigan before the county had even filed its Section 404 permit application, effectively blocking the project."

He added: "This pattern of events is troubling."

The Marquette County Road Commission is suing EPA and the Army Corps in federal court, accusing the administration of having a predetermined stance against the project.

In 2013, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Section 404 of the Clean Water Act gave EPA the power to veto specifications in the Army Corps' dredge-and-fill permits "whenever" EPA chose.

The same appeals court is now considering Arch's contention that EPA was arbitrary and capricious in moving against the Spruce project.

In Alaska, a federal court judge has blocked EPA's proposed actions against Pebble over company claims of agency collusion with outside groups.

In a separate lawsuit, Pebble also accused EPA of overstepping the Clean Water Act by moving to limit the mine ahead of the permitting process. But a judge said the company had to wait for a final agency action.

Pro-development lawmakers in recent years have moved to limit EPA's veto power, but bills have yet to gain significant traction. In the meantime, Gibbs wants more information about EPA's plans.

Gibbs asked for details on EPA's assertion that Clean Water Act vetoes will be used "rarely." Echoing Pebble, he questioned whether the agency is using its authority to usurp local zoning powers.

EPA has taken 13 final Clean Water Act vetoes since 1980, including Spruce, but not counting actions in Alaska and Michigan. Agency defenders say the authority is necessary to protect the environment.

Twitter: @ManuelQ Email: mquinones@eenews.net
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