A coalition of environmental groups filed a lawsuit against the Environmental Protection Agency (“EPA”) over the agency’s decision to revoke a Clean Water Act (“CWA”) veto that it issued in 2008. The veto blocked the United States Army Corps of Engineers (“Corps”) from issuing a CWA permit for the proposed plan to construct a 14,000 cubic feet per second (“cfs”) pumping plant (“Yazoo Pumps Project”) in the Yazoo Backwater Area of the Lower Mississippi River. In their complaint, the plaintiffs argue that revoking the veto was a violation of the CWA, and are asking that the court find the revocation invalid.

EPA Veto Authority Under the CWA

The authority to implement the CWA is split between two federal agencies, EPA and the Corps. While EPA issues the majority of CWA permits, the Corps issues permits for the discharge of dredge or fill material into waters of the United States. In other words, the Corps issues permits for the discharge of materials that would change the elevation of the bed of protected waterbodies, while EPA issues permits for discharges of all other pollutants. However, the CWA also grants EPA the authority to veto any permit proposed by the Corps.

Section 404(c) of the CWA states that EPA may seek to veto a Corps dredge or fill permit if EPA determines that the proposed permit activity is likely to result in “unacceptable adverse effect[s] on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” 33 U.S.C. § 1344(c). EPA can exercise its veto authority before a permit has been applied for, while a permit application is pending, or after a permit has been issued. The veto itself can either restrict, prohibit, deny, or withdraw the use of an area as a disposal site for dredged or fill material.

To initiate the veto process, EPA sends the Corps and the permit applicant a notice that it intends to issue a veto. EPA then publishes a notice in the Federal Registrar that it is considering exercising its veto authority. That initiates a public comment period of between 30 and 60 days, during which time a public hearing may be held. EPA then drafts a Recommended Determination to withdraw, prohibit, deny, or restrict the use of an area for disposing of dredged or fill material, and sends that document to the Corps for review. The Corps has 15 days to take correction action to prevent unacceptable adverse effects. If it cannot do so, EPA affirms the Recommended Determination and publishes the document in the Federal Register at which point the veto becomes effective. Since the CWA was passed in 1972, the Corps has authorized about 2 million vetoes, and EPA has exercised its veto authority only 13 times.

Background

On January 12, 2021, several environmental groups filed suit against EPA over its revocation of a CWA veto the agency issued in 2008 for the Yazoo Pumps Project. The Project, initially conceived in 1941, would involve the construction of a 14,000 cfs pumping plant to drain water from low-lying areas during certain flood events. Currently, the areas that would be affected by the Yazoo Pumps Project contains roughly 1,000 homes and farms that are highly prone to flooding. Construction of the pumping plant would require the discharge of dredged or fill material into nearly 45 acres of wetlands and other waters under CWA protection.

In 2007, the Corps released a final supplemental environmental impact statement (“2007 FSEIS”) examining the environmental impacts of the Yazoo Pumps Project. Although the FSEIS examined five alternatives to the proposed project, it only considered the impacts to a relatively small subset of wetlands within the Yazoo Backwater Area. EPA initiated the veto process against the Yazoo Pumps Project in early 2008. Ultimately, EPA found that the project would have unacceptable adverse effects and issued a veto. It relied on analysis in the 2007 FSEIS to determine that construction and operation of the Yazoo Pumps Project would significantly reduce ecological functions provided by thousands of acres of wetlands within the Yazoo Backwater Area. EPA also concluded that the 2007 FSEIS had underestimated the overall impacts the project would have to wetlands, wildlife, and aquatic habitat by limiting its analysis of impacts to only a certain subset of wetlands. In the veto document published in the Federal Register, EPA noted that its findings would apply to any “derivatives of the prohibited projects that involve only small modifications to the operation features or location of these proposals [which] would also likely result in unacceptable adverse effects.”

On October 4, 2020, the Corps released a draft supplemental environmental impact statement (“2020 DSEIS”) reevaluating the Yazoo Pumps Project. The 2020 DSEIS proposes some changes to the project, such as moving the pumps to a new location, relying on a 2019 wetland soil study, and new digital elevation methodology. However, many aspects of the 2020 DSEIS remain the same as the 2007 FSEIS, including the 14,000 cfs pumping plant, and the discharge of dredge and fill material into the same wetlands.

Following the release of the 2020 DSEIS, EPA sent the Corps its technical comments on the document. Those comments included a cover letter which contained a statement revoking the 2008 veto. The plaintiffs in American Rivers v. Envt’l Protection Agency, No. 1:21-cv-00097 (D. D.C. Jan. 12, 2021) challenge that revocation.

Plaintiffs’ Claims

The plaintiffs claim that EPA has violated the CWA by revoking its veto of the Yazoo Pumps Project.

First, the plaintiffs allege that the 2008 veto would not allow the Yazoo Pumps Project as it has been proposed by the Corps in the 2020 DSEIS. In the 2008 veto, EPA concluded that all of the alternatives proposed in the 2007 FSEIS would result in unacceptable adverse effects because each alternative included the construction of the 14,000 cfs pumping plant that would impact between 28,400 and 118,400 acres of wetlands. The 2020 DSEIS proposes construction of the 14,000 cfs pumping plant that would impact around 38,774 acres of wetlands. The plaintiffs argue that the Yazoo Pumps Project as proposed in the 2020 DSEIS violates the 2008 veto, and that EPA violated the CWA by failing to take that into consideration before issuing the veto revocation. Additionally, the plaintiffs argue that EPA ignored its own findings that the Yazoo Pumps Project would impact thousands of acres of wetlands in violation of the CWA requirement that EPA “take into account all information available” when assessing whether a discharge will unacceptable adverse effects. 40 C.F.R. § 231.1(a).

The plaintiffs go on to argue that EPA failed to provide a rational basis for its reversal. According to the plaintiffs, EPA did not give any analysis or explanation demonstrating why it thinks the 2020 DSEIS would prevent the unacceptable adverse effects that prompted EPA to issue the 2008 veto. Although veto revocation identifies five new features of the Yazoo Pumps Project as justification for the revocation, the plaintiffs argue that EPA does not explain how those new features will avoid adverse effects.

Finally, the plaintiffs claim that EPA did not provide an opportunity for public notice and comment, and that EPA lacks authority to revoke the veto. Under section 404(c) of the CWA, EPA is required to provide “notice and an opportunity for public hearing” in order to determine whether issuing a veto is appropriate. 33 U.S.C. § 1344(c). Although EPA has never revoked a veto prior to now, it has modified three vetoes in the past. Each modification occurred only after EPA had given an opportunity for public notice and comment. The plaintiffs argue that EPA must do the same if it going to revoke a permit, and that by failing to do so EPA has acted unlawfully. The plaintiffs conclude by claiming that even if EPA had given time for notice and comment, the agency still lacks the authority to issue a veto. Section 404(c) of the CWA grants EPA authority to issue a veto, but it does not grant EPA the authority to revoke a veto. According to the plaintiffs, because the CWA does not grant EPA authority to revoke a 404(c) veto, any revocation of one is a violation of the CWA.

Going Forward

Both the 2020 DSEIS and EPA’s veto revocation occurred during the Trump administration. The Biden administration has issued Executive Orders directing federal agencies to review all agency actions that were taken during the Trump administration. Although neither action was included on a list of actions that have been specifically targeted for review, both could still be reconsidered. Additionally, EPA has asked that the Department of Justice seek a stay of litigation in any lawsuit concerning a regulation passed by EPA during the Trump administration. Currently, no such request has been made in this lawsuit, but it is possible that one may be requested in the future. To read more about EPA’s request, click here.

Ultimately, this lawsuit is still in its earliest days and it is unclear what the outcome will be.

To read the complaint in American Rivers v. Envt’l Protection Agency, click here.

To read the 2020 DSEIS, click here.

To read EPA’s veto revocation, click here.

To read the 2008 veto, click here.

To read the text of the CWA, click here.

For additional National Agricultural Law Center resources on the CWA, click here.