49–006 

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 


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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. § 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 § 402), or through a separate permit program, for the discharge of dredged or fill material into jurisdictional waterbodies, 

including wetlands (see CWA § 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 


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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. 


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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 


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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 


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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: 


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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: 


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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. 


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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. 


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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 apVerDate Sep 11 2014 05:12 Nov 15, 2014 Jkt 049006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR609.XXX HR609

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prove 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) * * * 

* * * * * * * 

ø(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. 


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(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. 

* * * * * * * 


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1On 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 

§ 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)). 

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

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 


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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. 


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