EPA's Chief Administrator Gina McCarthy has just announced that the agency will pursue a Section 404(c) under the Clean Water Act in Bristol Bay to protect the fishery. "The Bristol Bay fishery is an extraordinary resource, worthy of out-of-the-ordinary agency actions to protect it."
Now that the Environmental Protection Agency (EPA) has completed its study of the Bristol Bay watershed, it must respond to a request from several federally recognized Tribes that have asked the agency to protect the area from impacts of large-scale mining. Specifically, the Tribes asked EPA to prohibit development in the Bristol Bay watershed by using Section 404(c) of the Clean Water Act. This article explains Section 404(c) and describes the process EPA would likely use if it were to decide to initiate it.
Clean Water Act
The Clean Water Act, passed in 1972, aimed to limit the release of toxic chemicals into our nation’s waterways and keep surface waters safe for human sport and recreation. Section 404 of the act regulates dredge and fill materials entering wetlands, streams or other waters. Under Section 404, the U.S. Army Corps of Engineers issues permits for activities that would place fill in wetlands. The permitting process requires that projects show they can take appropriate steps to avoid, minimize, and offset adverse impacts.
EPA’s authority: Section 404(c)
The EPA, which oversees the Dredge and Fill program, has the ultimate say in whether permits are issued. If a permitted discharge of fill would result in a “significant loss or damage to fisheries, shellfishing, or wildlife habitat or recreation areas,” Part c of Section 404 authorizes the EPA to essentially “veto” those dredge and fill permits. The EPA’s veto power has been used sparingly. According to the Corps of Engineers, 60,000 permits are processed each year. EPA has utilized its veto authority 13 times in the 42 years since the act was passed, and never in Alaska. The agency is currently in the 404(c) review process for a proposed surface mine in Kentucky. The EPA does not have to wait until developers apply for a Dredge and Fill Permit to utilize its Section 404(c) authority. If the agency determines that discharging fill would have unacceptable adverse impacts, it can withdraw or restrict an area to disposal of fill before a permit application has been submitted. In fact, in all but two of the 404(c) actions EPA has taken, it has initiated the process before a permit was issued.
What’s the process for restricting an area under 404(c)?
If EPA were to use its Section 404(c) authority to limit or restrict mining in the Bristol Bay watershed, it would be required to follow a systematic process (see graphic), including a public comment period.
What happens if EPA does not use 404(c) authority?
Since Anglo American withdrew from the Pebble project last fall, Northern Dynasty Minerals (NDM) has been looking for a new investor. NDM CEO Ron Thiessen has stated that the developer’s Board of Directors will make a decision this year on whether to move into permitting, with or without a new investor. An application for a Dredge and Fill permit would trigger the National Environmental Policy Act (NEPA), which involves multiple opportunities for public involvement; scientific analyses of environmental, economic and social impacts; and specific requirements for mitigation of potential impacts. The NEPA process would require several years.
Seattle Journal of Environmental Law article: “Using Section 404(c) of the Clean Water Act to Prohibit the Unacceptable Environmental Impacts of the Proposed Pebble Mine”
A story in the Anchorage Daily News reports that EPA's Dennis McLerran was in town this week, addressing attendees at the Alaska Forum on the Environment. In his presentation, McLerran noted that he would be making a decision soon about how to respond to a 2010 request from Alaska tribes asking the agency to enact protections in Bristol Bay.
Before he spoke, McLerran was presented with a letter urging EPA to pursue action to prohibit development in Bristol Bay. It was signed by 360 scientists from throughout the U.S. and countries such as Australia, France and Scotland.
Top leadership at Pebble Limited Partnership (PLP) is changing, with John Shively moving to a Board of Directors role and attorney Tom Collier taking over the company's CEO position. Shively was recruited as the company's CEO shortly after it formed as a partnership between Northern Dynasty Minerals and Anglo American. According to a PLP press release, Collier—a former Chief of Staff under Department of the Interior Secretary Bruce Babbitt—has worked with many Alaska-based clients and has provided strategic guidance to PLP regarding the federal permitting process; he also brings expertise regarding 404 wetlands permitting.
This change in leadership closely follows the release of the final EPA Bristol Bay Watershed Assessment, which will inform EPA's decision regarding whether it will decide to pursue its authority under Section 404 of the Clean Water Act to limit or prohibit development in the Bristol Bay region. Shively was tapped for the CEO position in 2008 partly because of his experience in Alaska, and partly because he was seen as a someone who could manage public criticism regarding the project.
At a 2013 Resource Development Council luncheon NDM CEO Ron Thiessen told a crowd about how Shively was recruited to PLP. (NDM is now the sole owner of the Pebble deposit; Anglo American withdrew from the project and PLP last fall.) Thiessen said that, years ago, when fishing the Kenai Classic, other fishermen asked him why he didn't stand up to negative reports in the media about the Pebble project. Regarding Shively, Thiessen said, "This is exactly the guy I need, who's going to stand up and take all that crap. Fortunately for us, John did join us and helped build a great team at the Pebble Partnership. I am very proud of those people and their accomplishments.”
Shakeup Atop the Pebble Limited Partnership (KDLG Radio, Dillingham – February 3, 2014) Northern Dynasty appoints regulatory heavyweight to lead Pebble permitting
About Pebble Watch
Pebble Watch is an impartial, educational and fact-based initiative of the BBNC Land Department to disseminate information regarding the proposed Pebble Mine project to BBNC shareholders and interested parties.