Vetoing Wetland Permits Under Section 404(c) of the Clean Water Act: A History of Inter-Federal Agency Controversy and Reform

For most of its four-decade history, section 404(c) of the Clean Water Act could have been considered to be a sleeper provision of environmental law. The provision authorizes the U.S. Environmental Protection Agency (EPA) to overrule permits for discharges of dredged or fill material issued by the U.S. Army Corps of Engineers (Corps) where necessary to ensure protection of fish and wildlife habitat, municipal water supplies, and recreational areas against unacceptable adverse effects. This authority of one federal agency to veto the decisions of another federal agency is quite unusual and perhaps unprecedented in environmental law. The exceptional nature of section 404(c) may explain why EPA has employed it only thirteen times in over four decades and just three times since 1990. When EPA has invoked its 404(c) authority, it has often done so to support the positions of federal and state fish and wildlife agencies and, perhaps surprisingly, Corps field-office officials. These agencies managed for eighteen years—between 1990 and 2008—to conduct the 404 permit program, one of the largest federal permit programs, without a single 404(c) veto, helped by the use of an interagency review process authorized by section 404(q) of the Act. The most recent three 404(c) actions—two involving large- scale mining operations and the other involving a large-scale flood control project—have all generated significant widespread controversy, and the fate of none of them is finally resolved. Their notoriety may disguise what we believe to be a chief lesson of having no 404(c) vetoes during the eighteen year period and just three vetoes in a quarter-century: the evolution of the Corps as an environmental agency, a notable achievement of section 404(c), since it has greatly furthered the statute’s goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’ s waters