RECENT FEDERAL DECISIONS

June 2009

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U.S. District Court Limits U.S. EPA Discretion to Veto a Permit under Section 404 of the Clean Water Act
Alliance to Save the Mattaponi, et. al., v. U.S. Army Corps of Engineers, et. al., ___F.Supp.2d___

The U.S. District Court, for the District of Columbia, has limited the U.S. Environmental Protection Agency’s (EPA) discretion under the Clean Water Act (CWA) in determining whether to veto a CWA § 404 permit, deciding that the EPA administrator may only use his discretion to decide whether or not the proposed permit is likely to result in “unacceptable adverse effects.” However, if the EPA administrator finds that “unacceptable adverse effects” exist, the EPA must veto the permit.