Section 404(b)(1) directs the Corps — not EPA — to apply the Guidelines. 33 U.S.C. § 1344(b)(1). The statute gives EPA no authority to apply them itself after the Corps has issued a permit.

EPA’s claimed authority would establish a perpetual authority to unilaterally revoke permits, thereby changing the terms of all § 404 permits and the legal rights of permittees, and altering the effect of § 404(p), which deems all actions taken pursuant to § 404 permits to be in compliance with the CWA. See 33 U.S.C. § 1344(p). EPA’s action will also alter the regulatory expectations and business models of all permittees by imposing the uncertainty created by the risk that EPA will at any time in the future try to take away a permit without having any of the constraints imposed by the Corps’s regulation or judicial review.

Clear deadlines that are in the statute put the intentional lack of a deadline for a final permit decision in stark relief. See, e.g., 33 U.S.C. § 1344(a) (deadline to publish a notice within 15 days); id. § 1344(m) (deadline for Secretary of Interior to submit comments within 90 days).21 The regulations are replete with exceptions to the suggested timeframes.

§ 330.5(a)(2); 33 U.S.C. § 1344(e). The Corps memorializes its 404(b)(1), NEPA, and other environmental analyses in a decision document for each nationwide permit.

at 21-22. 33 U.S.C. § 1344(e). They cannot, therefore, involve the “unacceptable adverse effect[s]” that § 404(c) addresses.

Any further action on those applications would be governed by established, codified regulations with timeframes and procedural safeguards. See generally 33 U.S.C. § 1344; 33 C.F.R. part 325. Defendants speculate that even if the EC Process Memoranda are set aside, there is no guarantee that the permit applications will be evaluated any more quickly because, for example, EPA may choose to exercise its Section 404(c) authority.

The “specification” of a disposal site refers to the process by which a disposal site is specified by a Section 404 permit. See 33 U.S.C. § 1344(b) (“each such disposal site shall be specified for each such permit by the [Corps]”). Because Section 404(c) authorizes EPA to prohibit, withdraw, deny, or restrict the specification of such disposal sites that would otherwise be authorized by a Section 404 permit, EPA’s authority under Section 404(c) is often designated as the authority to “veto” the permit.

Id. at *6-7 (citing 33 U.S.C. § 1344(p)). In light of the foregoing, EPA’s interpretation of the CWA, as reflected in its long- standing regulations and as stated in the Proposed Determination, is at least a permissible reading of the statute.

B. The Corps’ Administration of the Nationwide Permit Program Before issuing NWPs, the Corps conducts a predictive environmental analysis to ensure that the individual and cumulative adverse environmental impacts of the activities authorized by each proposed NWP are no more than “minimal.” See 33 U.S.C. § 1344(e). The Corps seeks public comment on the proposed NWPs and prepares appropriate documentation under the National Environmental Policy Act (“NEPA”).

NYPIRG, 321 F.3d at 331. Applying this reasoning to CWA §404(c), the requirements that EPA consult with the Secretary, 33 U.S.C. § 1344(c), give notice and opportunity for a public hearing, id., and notify the district engineer, the state, and the applicant of an intention to “issue a public notice of a proposed determination,” 40 C.F.R. § 213.3(a)(1), are the “statutorily 3 Although section 404(c) states that “the Administrator [of EPA] shall consult with the Secretary” “[b]efore making such determination,” this does not refer to a preliminary process or investigation.