EPA Expects Legal Challenge to Veto of 404 Permit

On January 31, the EPA issued a final determination vetoing the controversial Pebble Mine Project in Bristol Bay, Alaska. The EPA utilized its authority under 404(c) to block construction of a massive mine near Bristol Bay – home to one of the world’s largest salmon fisheries. The EPA’s decision bars the Pebble Mine Project from dumping mine waste into Alaska’s Bristol Bay watershed, which the EPA determined would have unacceptable, adverse impacts on the salmon fishery and other environmental receptors.

The EPA and the Army Corps of Engineers share responsibly for dredge–and–fill permitting under Section 404 of the Clean Water Act (“CWA”). Pursuant to an Inter-Agency Agreement, the Corps reviews and approves permit applications; however, the EPA retains “veto” power where it determines that “unacceptable adverse effects” will result from the permitted action. The EPA has exercised this jurisdiction only 14 times in the 50-year history of the of the CWA. Representatives of Pebble Mine, and the State of Alaska, have indicated that they intend to challenge the decision as being beyond the scope of the EPA’s authority under the CWA. For more information, please contact one of the attorneys in SGR’s Environmental Practice.


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