39–006 

113TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 113–485 

TO AMEND THE FEDERAL WATER POLLUTION CONTROL ACT TO CLARIFY 

THAT THE ADMINISTRATOR OF THE ENVIRONMENTAL PROTECTION 

AGENCY DOES NOT HAVE THE AUTHORITY TO DISAPPROVE A PERMIT 

AFTER IT HAS BEEN ISSUED BY THE SECRETARY OF THE ARMY UNDER 

SECTION 404 OF SUCH ACT 

JUNE 20, 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 

[To accompany H.R. 524] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Transportation and Infrastructure, to whom 

was referred the bill (H.R. 524) to amend the Federal Water Pollution Control Act to clarify that the Administrator of the Environmental Protection Agency does not have the authority to disapprove a permit after it has been issued by the Secretary of the 

Army under section 404 of such Act, having considered the same, 

report favorably thereon without amendment and recommend that 

the bill do pass. 

CONTENTS 

Page 

Purpose of Legislation ............................................................................................. 2 

Background and Need for Legislation .................................................................... 2 

Hearings ................................................................................................................... 4 

Legislative History and Consideration .................................................................. 4 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 7 

New Budget Authority and Tax Expenditures ...................................................... 7 

Congressional Budget Office Cost Estimate .......................................................... 7 

Performance Goals and Objectives ......................................................................... 8 

Advisory of Earmarks .............................................................................................. 8 

Duplication of Federal Programs ............................................................................ 8 

Disclosure of Directed Rule Makings ..................................................................... 8 

Federal Mandate Statement ................................................................................... 8 

Preemption Clarification ......................................................................................... 9 

Advisory Committee Statement .............................................................................. 9 

Applicability of Legislative Branch ........................................................................ 9 

Section-by-Section Analysis of Legislation ............................................................ 9 

Changes in Existing Law Made by the Bill, as Reported ..................................... 9 


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PURPOSE OF LEGISLATION

H.R. 524 amends the Federal Water Pollution Control Act to provide that the Administrator of the Environmental Protection Agency does not have the authority to disapprove a permit after it has 

been issued by the Secretary of the Army under section 404 of the 

Act. 

BACKGROUND AND NEED FOR 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 (typically 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 


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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). 

Once the EPA has approved a Corps section 404 permit, generally speaking, 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 did express concern 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 speciVerDate Mar 15 2010 01:23 Jun 25, 2014 Jkt 039006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR485.XXX HR485

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fication 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).) 

In response to the EPA’s recent actions to withdraw the discharge authorization for the Spruce project after issuance of the 

project’s permit, the bill’s sponsor introduced H.R. 524 to provide 

that the EPA has the authority under section 404(c) to withdraw 

a project’s discharge site specification only prior to the Corps’ 

issuance of the 404 permit for the project. The bill aims to address 

the concern that the EPA’s authority to undo a Corps section 404 

permit action has the potential to disrupt the finality and certainty 

of the CWA section 404 permit process, a process that is critical to 

a wide range of industries and projects. There is concern that this 

lack of certainty could chill future investments in vital infrastructure and other development projects that require 404 permits. 

HEARINGS

No hearings were held on H.R. 524. 

In the 112th Congress, the Subcommittee on Water Resources 

and Environment held a hearing on the EPA’s surface mining policies and related regulatory activities, including the EPA’s retroactive withdrawal of the discharge authorization of the Spruce 

Mine’s section 404 permit. 

LEGISLATIVE HISTORY AND CONSIDERATION

On February 6, 2013, Representative David McKinley of West 

Virginia introduced H.R. 524, a bill to provide that the Administrator of the Environmental Protection Agency does not have the 

authority to disapprove a permit after it has been issued by the 

Secretary of the Army under section 404 of the CWA. 

On April 9, 2014, the Committee on Transportation and Infrastructure met in open session to consider H.R. 524, and ordered the 

bill reported favorably to the House by record vote with a quorum 

present. The vote was 34 yeas to 19 nays. No amendments were 

offered. 


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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. 524, a total of one record vote was taken, which was 

on a final vote ordering the bill reported. 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. 524 from the Director of the Congressional Budget Office: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, April 17, 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. 524, a bill to amend the 

Federal Water Pollution Control Act to clarify that the Administrator of the Environmental Protection Agency does not have the 

authority to disapprove a permit after it has been issued by the 

Secretary of the Army under section 404 of such Act. 

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. 524—A bill to amend the Federal Water Pollution Control Act 

to clarify that the Administrator of the Environmental Protection Agency does not have the authority to disapprove a permit 

after it has been issued by the Secretary of the Army under section 404 of such Act 

Section 404 of the Federal Water Pollution Control Act (Clean 

Water Act) 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 waters of the United States, including 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. Under current law, the Environmental Protection 

Agency (EPA) has the authority to revoke or modify permits issued 

by the Corps. Enacting this legislation would prohibit EPA from reVerDate Mar 15 2010 01:23 Jun 25, 2014 Jkt 039006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR485.XXX HR485

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voking a permit issued by the Corps under section 404 of the Clean 

Water Act. 

Based on information from EPA, CBO estimates that enacting 

this legislation would have no significant effect on the federal 

budget because EPA seldom revokes permits issued by the Corps. 

Since 1972, EPA has revoked permits from the Corps for only two 

projects. 

Pay-as-you-go procedures do not apply to H.R. 524 because enacting the bill would not affect direct spending or revenues. 

H.R. 524 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 Environmental Protection Agency does not have the authority to disapprove a permit after it has been issued by the Secretary 

of the Army under section 404 of the CWA. 

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. 524 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 RULE MAKINGS

Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013), the 

Committee estimates that enacting H.R. 524 does not specifically 

direct the completion of any specific rule makings within the meaning of section 551 of title 5, United States Code. 

FEDERAL MANDATE STATEMENT

The Committee adopts as its own the estimate of federal mandates prepared by the Director of the Congressional Budget Office 


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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. 524 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. Permits for Dredged or Fill Material 

Section 1 amends section 404(c) of the CWA to provide that the 

Administrator of the Environmental Protection Agency has the authority to 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 section 404(c) 

of the CWA only until such time as the Secretary of the Army has 

issued a permit under section 404 covering such area. Once the 

Secretary of the Army has issued a section 404 permit for the use 

of an area as a disposal site, the Administrator no longer has the 

authority to prohibit, deny, restrict, or withdraw the use of such 

area as a disposal site. 

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. 

524, as reported, are shown as follows (existing law proposed to be 

omitted is enclosed in black brackets, new matter is printed in 

italic, existing law in which no change is proposed is shown in 

roman): 

FEDERAL WATER POLLUTION CONTROL ACT 

* * * * * * * 


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TITLE IV—PERMITS AND LICENSES 

* * * * * * * 

PERMITS FOR DREDGED OR FILL MATERIAL

SEC. 404. (a) * * * 

* * * * * * * 

(c) øThe Administrator is authorized¿ Until such time as the Secretary has issued a permit under this section, 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. 

* * * * * * * 

Æ 


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