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11 June 2018
On March 30 2018 Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a memorandum and accompanying revised Delegation of Authority 2-43 retaining the EPA headquarters' authority to make certain jurisdictional determinations under the Clean Water Act Section 404 discharge of dredged or fill material permitting programme. Jurisdictional determinations are important because they delineate whether, and to what extent, a water body is subject to Section 404 permitting, and the Supreme Court held several years ago that they are final agency action reviewable in court. Among other elements, the memorandum delegates authority to designate "special cases" to the assistant administrator for water (and then redelegates it to the director of the Office of Wetlands, Oceans and Watersheds). Under a 1989 memorandum of understanding between the Department of Army and the EPA, regional administrators made jurisdictional determinations for special cases, which are situations "where significant issues or technical difficulties are anticipated or exist" in determining the exact scope of waters subject to the Clean Water Act. The memorandum also delegates the ability to restrict or prohibit designation of disposal sites under Section 404(c) to the assistant administrator for water. The memorandum states that the EPA is taking these actions "to ensure consistency and certainty" while the agency completes its re-evaluation of the definition of 'waters of the United States' under the Clean Water Act.
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