EPA Seeks New Limits on Its Own Authority

Filed in Codes and Regulations, Environmental by on July 6, 2018 0 Comments

yield sign, with blue sky and cloudsThe work of untangling and dismantling an overblown and overreaching bureaucracy continues at the Environmental Protection Agency (EPA) even amid leadership changes.

With the resignation of Administrator Scott Pruitt, President Trump on Thursday named Deputy Administrator Andrew Wheeler to temporarily lead the agency. Wheeler served as senior counsel to the Senate Committee on the Environment and Public Works during James Inhofe’s (R-Okla.) chairmanship of that important committee.

Just before resigning, Pruitt undertook three steps furthering the President’s deregulatory goals.

On June 29, EPA reopened for 30 days the public comment process to formally withdraw the Obama administration’s 2015 “waters of the United States” (WOTUS) rulemaking. EPA’s action is widely seen as a recognition that environmental groups and some state governments will challenge in federal court any final action removing the Obama-era WOTUS rule.

The additional time provides NAHB and other stakeholders an opportunity to strengthen the Trump administration’s decision to withdraw it. For now, the 1986 WOTUS regulatory definition is in place.

EPA has also submitted to the White House Office of Budget and Management proposed definitions for what constitutes WOTUS that are much narrower in scope than the 2015 version.

Finally, the agency has moved to limit federal veto authority over permits that developers and others obtain to work in wetlands as required under the Clean Water Act.

In a memo to the EPA Office of Water, Pruitt said he also wanted to clarify EPA’s authority to object during the Section 404 permit review process that the agency conducts in conjunction with the Army Corps of Engineers.

Specifically, the memo directs the Office of Water to undertake a rulemaking with six months to remove EPA’s authority to:

  • Deny a federal wetlands permit on a proposed activity – even before the applicant has the opportunity to submit the application, and
  • Retroactively suspend or withdraw an already issued Section 404 wetlands permit.

While these actions are extremely rare, the mere threat has had a chilling effect on developers and builders whose proposed land development or housing projects have drawn the attention of environmental groups or regulators.

The memo also directs the Office of Water to clarify that only the EPA Administrator, not EPA regional offices, can make veto determinations on permits undergoing review.

These moves are consistent with President Trump’s desire to reduce regulatory burdens on businesses while also improving the current confusing and disjointed federal permitting process – particularly with regard to the wetlands permits jointly administered by the Corps and EPA.

For additional information, contact Michael Mittelholzer.

 

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