WASHINGTON, D.C. — U.S. Senator Tom Carper (D-Del.), Chairman of the Senate Committee on Environment and Public Works, today released the following statement on the Environmental Protection Agency (EPA)’s announcement to renew its assessment of proposed mining operations in Bristol Bay, Alaska through its authority under Section 404(c) of the Clean Water Act (CWA):
“I’m truly pleased with Administrator Regan’s decision to follow the science in this case. The Clean Water Act makes it clear that EPA has an obligation to review the impact of proposed projects to surrounding fisheries, wildlife, and recreation areas. In this case, EPA should determine whether the Pebble Mine would endanger one of North America’s most pristine, productive, and sustainable salmon nurseries, and the nearby Alaska Native communities who rely on this watershed. After the previous administration completely disregarded its duty to thoroughly examine this project potential impacts, it’s welcome news that the Biden administration has corrected course.”
CWA section 404(c) gives the EPA Administrator veto authority over dredge and fill permits issued by the U.S. Army Corps of Engineers “whenever [the Administrator] determines. . .that the discharge of such materials into such area will have unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreation areas.”
Under the previous administration, EPA withdrew a proposed 404(c) determination from 2014, bringing an end to EPA’s review and potential decision to permanently prevent the operation of the Pebble Mine.
Senator Carper and Rep. Peter DeFazio, then-Ranking Member of the U.S. House Transportation and Infrastructure Committee, sent a letter to then-Acting EPA Administrator, Andrew Wheeler, urging Wheeler to revoke a memorandum that would have severely limited the use of section 404(c) authority.
Recently, the Ninth Circuit Court of Appeals decided that once EPA has published a notice of proposed determination that a particular site may be unfit for a project, that determination can be withdrawn only if EPA determines that an unacceptable adverse effect is not likely. The Ninth Circuit remanded the case to the Alaska federal district court.
Today, the U.S. Department of Justice, in a filing with the Alaska federal district court, announced EPA’s intent to request that the 2019 withdrawal notice be vacated and remanded. If that motion is granted, EPA’s 404(c) review process would be automatically reinstated, allowing the agency to solicit additional public input and make a final determination on the project.