EPA Centralizes Responsibility for Clean Water Act Jurisdictional Determinations

On March 30, 2018, EPA Administrator Scott Pruitt issued a memorandum and delegation of authority that move responsibility for the EPA’s role in Clean Water Act Jurisdictional Determinations to EPA’s Assistant Administrator for Water. Responsibility for this role previously resided with regional EPA administrators.

Jurisdictional Determinations are a critical aspect of the “dredge-and-fill” permitting requirements under section 404 of the Clean Water Act, and the determinations are closely linked to the contentious “Waters of the United States Rule” (see previous blog coverage herehere, and here). Jurisdictional Determinations are used to determine whether a particular project is subject to federal permitting requirements under the Clean Water Act.

EPA and the Army Corps of Engineers jointly administer the section 404 permitting process, with the Army Corps undertaking the vast majority of Jurisdictional Determinations. EPA gets involved, however, where a determination is “special,” meaning that there are “significant issues” or “technical difficulties” involved. The new delegation, therefore, will apply only to these special determinations, and will not affect the majority of determinations that will still be made by the Army Corps of Engineers.

Nevertheless, the move is significant because it centralizes EPA authority over these important cases to Washington D.C.,  removing decision-making power from EPA’s regional offices. As was stated by Administrator Pruitt in his memo to the Regional Administrators:

[T]o ensure consistency and certainty in how the EPA makes certain jurisdictional determinations under the Clean Water Act, I have issued the accompanying revised delegation of authority for Section 404 dredged and fill material permitting. With this revised delegation, authority previously delegated to regional administrators to make final determinations of geographic jurisdiction shall be retained by the Administrator. Please take all necessary steps to adjust associated consultations, reviews and other practices in a manner consistent with the revised delegation. As part of effectuating this revision, I ask that you involve the Administrator’s Office early on in the process of developing geographic determinations.

The move further signals that those seeking Jurisdictional Determinations or section 404 permits are likely to find a sympathetic ear at EPA headquarters in Washington, even while a Trump-administration replacement for the Waters of the United States rule remains pending.