March 2014

25 March 2014

About Section 404(c)

Current Status

The public comment period for EPA's Proposed Determination ended September 19, 2014, after which EPA began reviewing hundreds of thousands of public comments. However, in November 2014, U.S. District Court Judge H. Russel Holland granted a preliminary injunction, ordering EPA to stop work on activities related to the 404(c) process until he is able to hear the merits of a civil suit brought by the Pebble Limited Partnership.  The Judge's ruling delays EPA's work until late spring or early summer 2015.

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About Section 404(c)

Section 404(c) is part of the Clean Water Act (CWA), legislation passed in 1972 that aims to maintain or restore the integrity of the nation’s waters, including its wetlands. Section 404 of the CWA 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, overseen by EPA, requires that projects show they can take appropriate steps to avoid, minimize, and offset adverse impacts.

Part C of Section 404 authorizes the EPA to withdraw, deny, prohibit or restrict those areas to discharge – before or after a permit has been submitted – if it determines that a discharge of fill would results in a "significant loss or damage to fisheries, shellifishing, or wildlife habitat or recreation areas."

Use of Section 404(c) in Bristol Bay

In February 2014, EPA announced its intention to use its authority under Section 404(c) to protect the salmon fishery in Bristol Bay "from the potentially destructive impacts of the proposed Pebble Mine."

Steps taken in Section 404(c) process to date

Consultation PeriodThe first part of the 404(c) process, the "Consultation Period," ended April 29, 2014. The Consultation Period is a time during which developers can provide additional information to EPA for its consideration. Northern Dynasty Minerals submitted the following documents, which state a case against the 404(c) process altogether.

Development of Proposed DeterminationEPA prepared a 214-page document that includes sections on the region's ecological resources, basis for the proposed determination and the proposed restrictions. Dozens of reference materials are cited.

Release of Proposed DeterminationEPA released the Proposed Determination on July 18, 2014, detailing retrictions it is proposing for disposal of dredge and fill in the area near the Pebble deposit. The agency stated that it based these recommendations on a "conservative analysis" of potential risks of adverse effects (it did not include potentail risk due to accidents or for a mine operating longer than 20 years).

Public Comment PeriodThe Proposed Determination was open to public comment from July 18 to September 19, 2014. The agency says all comments will be thoroughly reviewed and considered. 

Public Meetings Public meetings were held the week of August 12-15, 2014 in Anchorage, New Stuyahok, Nondalton, Kokhanok, Dillingham, Iliamna and Igiugig. Around 300 people provided testimony in person.

Next steps

  • Recommended Determination. The EPA Regional Administrator reviews public comments and then decides to withdraw the Proposed Determination or prepare a Recommended Determination and forward it to EPA headquarters for review. The EPA had set February 4, 2015 as the deadline for this stage of 404(c) action, but a federal preliminary injunction has delayed EPA's work on all 404(c) activity.
  • Final Determination. If a Recommended Determination is submitted to EPA headquarters, the agency acts within 60 days to modify, rescind or approved it. This decision is published as the Final Determination.

 

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Details

Pebble Watch Overview of Proposed Determination - Highlights, chapter guide, terminology and a timeline of the 404(c) process.

U.S. EPA Website: Clean Water Act Section 404(c): "Restriction of Disposal Sites"

U.S. EPA Proposed Determination: Executive SummaryFull version

Pebble Watch Guide to the EPA and Bristol Bay: Read online • Download PDF (March 2014)

Pebble Watch Guide to the 404(c) process (March 2014)


Correspondence

EPA letter announcing 404(c) action (February 28, 2014)

EPA Notification of extension: Response to State of Alaska • Response to Pebble Limited Partnership (both March 13, 2014)

Northern Dynasty response to EPA • As announced on Pebble Partnership site (April 29-30, 2014)


Bristol Bay Watershed Assessment

On U.S. EPA's "Bristol Bay" pages, learn more about the Watershed Assessment, the document that informed EPA's decision to initiate the 404(c) process.

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24 March 2014

News Roundup: 404(c) and HB77 dominate Pebble-related news

EPA's Section 404(c) announcement and resulting subpoena dominates national news on Pebble; at the state level, public response stalls House Bill 77, while a judgment stalls the "Save our Salmon" initiative.

Responses to EPA's 404(c) decision

EPA's decision to use its authority under the Clean Water Act to pursue protections for Bristol Bay was met with positive reactions from some - and a subpoena from others.

Leaders, Stakeholders React After EPA's Pebble Mine Announcement (February 28, 2014 - Alaska Dispatch)

Many had been waiting to see how EPA would respond to Tribes that had requested a 404(c) action to protect Bristol Bay. When the EPA announced that it would indeed initiate the rarely-used 404(c) process, there were mixed reactions. Rounded up here by the Alaska Dispatch, they range from "federal overreach on steroids" (Alaska State Senator Cathy Giessel) to the first steps in a "significant conservation achievement" (Trout Unlimited President Chris Wood). Read the full story.

Pictures: Photographer Who Shot Bristol Bay Celebrates Halt of Pebble Mine (March 2, 2014 - National Geography Daily News)

National Geographic piece features Michael Melford's compelling photos of Bristol Bay, along with his reaction to the EPA's 404(c) announcement. Read the full story.

EPA Tells Miners to Keep Out of Alaska's Bristol Bay and They Aren't Buying It (February 28, 2014 - Business Week online)

Business Week report includes comments from Pebble Limited Partnership CEO Tom Collier, who said EPA's 404(c) action is "insignificant" and that he believes the process "will ultimately not prevent him from developing the Pebble Mine." Read the full story.

Issa Subpoenas EPA for Pebble Mine Documents (March 21, 2014 - House Committee press release)

The U.S. House Committee on Oversight and Government Reform has subpoenaed the EPA for documents related to its Bristol Bay Watershed Assessment and subsequent announcement that it is beginning a process under Section 404(c) of the Clean Water Act to seek protections for Bristol Bay. Read the full story.

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Special edition publication focuses on EPA and Bristol Bay

epaguide coverPebble Watch has published a special edition focusing on the U.S. EPA and Bristol Bay. The newsletter offers an impartial resource for understanding the agency's Bristol Bay Watershed Assessment and ongoing 404(c) process.

Read online • Download and print PDF

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18 March 2014

EPA grants extension in first step of 404(c) process

The U.S. Environmental Protection Agency (EPA) has granted the State of Alaska and the Pebble Limited Partnership (PLP) an extension to the "consultation period," one of the first steps in the official 404(c) process the agency initiated to protect the Bristol Bay fishery. The extension lasts until April 29, 2014, an additional 45-days beyond the minimum 15-day window for this stage in the process.

The extension falls short of what the State had requested, which was to stay the 404(c) review completely until a permit application could be filed and reviewed by the U.S. Army Corps of Engineers under the Clean Water Act and National Environmental Policy Act. In letters to the State and to PLP, EPA clarified that a permit application can be filed and reviewed, but that “a permit for the Pebble Mine may not be issued while a section 404(c) review is underway.”

What is the "consultation period"?

The consultation period gives project proponents the opportunity to demonstrate to EPA that no unacceptable adverse effects will occur in the Pebble deposit area. "The first step in this process is to reach out to the state, to the mining companies and to the Army Corps and to ask them for whatever information they want to provide," said EPA Chief Administrator Gina McCarthy during the February 28 press conference announcing the decision too use the 404(c) process.

"EPA put out a scientific assessment that's been peer reviewed at least a few times by a range of scientists who worked with the agency to make sure it was comprehensive," said McCarthy. "That doesn't mean that the science is a final tool for this agency... We're still open...This is all about getting more information in and making sure we listen to the full range of issues and concerns and ideas that the company might have, that the state might have, that the Army Corps might have available to it."

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14 March 2014

Additional public hearings scheduled for HB77

 

HB77, which proposed to “streamline” Alaska’s permitting process is now up for consideration by the Alaska State Senate. The Department of Natural Resources testified Monday, with an initial public hearing on Wednesday. An additional public input period has been scheduled for Friday, March 14 at 3:30 p.m. Citizens may contact their local Legislative Information Office to find out how to participate in the hearing.

For more coverage of HB77, read this Pebble Watch story.

State HB77 page with links to full text of the bill.

Reserving Water for Instream Use (State of Alaska description)

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12 March 2014

Public hearings scheduled for HB77

HB77, which proposed to “streamline” Alaska’s permitting process is now up for consideration by the Alaska State Senate. The Department of Natural Resources testifies on Monday, with a public hearing scheduled for Wednesday, March 12 at 3:30 p.m. Citizens may contact their local Legislative Information Office to find out how to participate in the hearing.

For more coverage of HB77, read this Pebble Watch story.

State HB77 page with links to full text of the bill.

Reserving Water for Instream Use (State of Alaska description)

Read more

11 March 2014

HB77 bill changes address some concerns

UPDATE: An additional public input period has been scheduled for Friday, March 14, at 3:30 p.m. 


The Alaska State Senate is considering HB77, a bill that was designed to streamline permitting, but which has drawn much concern from the public since passed by the House a year ago. Yesterday, the Department of Natural Resources (DNR) provided testimony to the Senate, including documents that reflect revisions to HB77 in response to some of those concerns.

Pebble Watch previously reported on a hearing where members of the public voiced many concerns. Below is our summary of those issues and how they've been handled in the latest version of HB77. Public testimony for the new version of HB77 is scheduled for Wednesday, March 12, at 3:30 p.m. Contact your Legislative Information Office to find out how to participate.

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10 March 2014

Public hearings scheduled Wednesday for HB77

HB77, which proposed to “streamline” Alaska’s permitting process is now up for consideration by the Alaska State Senate. The Department of Natural Resources testifies on Monday, with a public hearing scheduled for Wednesday, March 12 at 3:30 p.m. Citizens may contact their local Legislative Information Office to find out how to participate in the hearing.

For more coverage of HB77, read this Pebble Watch story.

State HB77 page with links to full text of the bill.

Reserving Water for Instream Use (State of Alaska description)

Read more