United States: EPA Reconsiders 2014 Proposed Decision Restricting Development of Mineral-Rich Area in Southwest Alaska
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Washington, DC (November 30, 2021) – On November 23, 2021, the United States Environmental Protection Agency (EPA) announced that it will extend until May 31, 2022 the agency’s review of a 2014 proposal for determination to restrict mining. associated with a specific mineral deposit in a large region of Alaska. The EPA’s announcement comes after the EPA asked the U.S. District Court for the District of Alaska to overturn the agency’s 2019 decision to withdraw the proposed determination. The EPA’s request signaled interest in reaffirming the agency’s use of authority under Section 404 of the Clean Water Act to designate lands and waters within boundaries of ‘a state as out of bounds for development projects requiring a permit from the United States Army Corps of Engineers. The resumption of the 2014 Proposed Determination may have broad implications outside of the specific drop zone in Southwest Alaska and can be used as a model to oppose or limit the size of all types of projects. development or to shut down entire regions of the country. limits to development. Companies should closely monitor the EPA’s decision to withdraw, revise, or resubmit the 2014 Determination.
Section 404 of the CWA prohibits the dumping of dredged or fill material in United States navigable waters unless authorized by the Corps by issuance of a permit. CWA Â§ 404, 33 USC Â§ 1344. However, the CWA also provides that the designation of a particular area for a disposal site may be prohibited or restricted by the EPA “whenever
[EPA] determines, after notice and possibility of public hearings, that the discharge of such material into such an area will have an unacceptable effect on the water supply, shellfish beds and fishing areas (including spawning and fishing grounds reproduction), wildlife or recreation areas. Â§ 1344 (c). The specification of disposal sites by the Corps is subject to the authority of the EPA under Section 404 (c) commonly known as the EPA veto authority. Id. Â§ 1344 (b). The EPA has historically reduced the use of its 404 (c) authority, preferring to resolve its issues with the Corps under a 1992 Memorandum of Understanding (MOA) that established a clear process for raising and resolving issues. EPA and Corps disagreements over Section 404 permits.
As a result, prior to 2014, the EPA’s “veto power” was only invoked after the Corps failed to address the agency’s concerns through the MOA process and after receiving the notice that the Corps intended to issue a permit. But in 2014, without any permit applications under review with the Corps, the EPA designated waters in the area of â€‹â€‹an entire watershed where authorization of any discharge associated with the exploitation of a deposit of substantial ore would automatically be banned. The EPA’s action has been criticized for effectively preventing any opportunity for project proponents to have their permit application fully considered and for predetermining that any proposal to mitigate impacts associated with a project is unlikely to succeed. compensate for negative impacts. The EPA’s determination proposal also sought to limit the size and scale of development projects by setting specific impact thresholds that could be used to deny future projects. The 2019 proposal to withdraw the pre-emptive veto from the EPA recognized these implications and determined that it was best to follow the procedures outlined in the 1992 MoU before launching the authority of the EPA. section 404 (c).
The EPA’s resumption of its 2014 Determination Proposal signals the agency’s intention to use its veto power to designate areas within states as closed to certain types of development. This action prejudges Body Section 404 decisions and limits the ability of states to decide how to use their lands and resources. Developers of projects that require CWA Section 404 permits should be made aware of these new risks.
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