Veto-ing the Veto?: Limited Options Remain under Clean Water Act Section 404(c) for EPA to Allow Development of the Pebble Deposit

37 Pages Posted: 26 Oct 2017 Last revised: 12 Aug 2019

See all articles by Kevin O. Leske

Kevin O. Leske

University of Dayton School of Law

Date Written: October 25, 2017

Abstract

On July 21, 2014, the United States Environmental Protection Agency (EPA) took its first step under Clean Water Act (CWA) § 404(c) to protect the pristine Bristol Bay watershed in southwestern Alaska. It proposed to restrict the use of certain waters in the watershed for the disposal of dredged or fill material associated with mining a large ore deposit.

CWA § 404(c) gives EPA the authority to prohibit (in other words, “veto”) an area as “a disposal site” under the act. The section specifies that this decision be made whenever EPA determines “that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.” Here, EPA recognized that the Bristol Bay watershed had “unparalleled ecological value, boasting salmon diversity and productivity unrivaled anywhere in North America” and thus protection was necessary.

However, on July 19, 2017, under the new Trump Administration, EPA signaled its intent not to move forward with the protection of Bristol Bay. Now an application for the development of the “Pebble Deposit” is pending. Naturally, a legal showdown concerning the proposed Pebble Mine is inevitable. Although in a surprising move in 2018, EPA temporarily suspended the proceeding to withdraw the 2014 CWA § 404(c) Proposed Determination, the fate of the Bristol Bay watershed remains in question because EPA further indicated that it “intends at a future time to solicit public comment on what further steps, if any, the Agency should take under § 404(c) . . . in light of the permit application [for the Pebble Mine] that has now been submitted to the U.S. Army Corps of Engineers.”

What steps can (and, arguably, must) EPA take in a future action involving CWA § 404(c) and the Pebble Project? And what if EPA again attempts to withdraw its 2014 Proposed Determination? This Article examines these key questions. It first explains that a court is unlikely to permit EPA to withdraw the 2014 Proposed Determination on the same basis that EPA proposed to withdraw it in 2017. Moreover, in light of the 2014 Proposed Determination, EPA’s options are now limited with respect to allowing development of the Pebble Deposit. The article concludes that principles of administrative, constitutional, and environmental law demonstrate that it will be difficult for EPA to justify not finalizing its 2014 proposal to prohibit the disposal of mining waste into this sensitive area.

Keywords: Clean Water Act, CWA 404(c), dredge and fill, Pebble Mine, Alaska, Bristol Bay, Salmon, Watershed, Pruitt, Trump, EPA, Administrative Law, Environmental Law

Suggested Citation

Leske, Kevin, Veto-ing the Veto?: Limited Options Remain under Clean Water Act Section 404(c) for EPA to Allow Development of the Pebble Deposit (October 25, 2017). Environmental Law, Vol. 48, No. 797, 2018, Available at SSRN: https://ssrn.com/abstract=3059104

Kevin Leske (Contact Author)

University of Dayton School of Law ( email )

300 College Park
Dayton, OH 45469
United States

HOME PAGE: http://www.udayton.edu/directory/law/leske_kevin.php

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