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EPA’s Preemptive Veto Sets Dangerous Precedent

Jan 31, 2023

The U.S. Environmental Protection Agency, (EPA), issued its final 404(c) preemptive veto today on 309 square miles of State-owned land in the Bristol Bay area, including the proposed Pebble project, imposing a blanket prohibition on development and usurping the State’s ability and responsibility to protect its own fishery resources.

“EPA’s veto sets a dangerous precedent. Alarmingly, it lays the foundation to stop any development project, mining or non-mining, in any area of Alaska with wetlands and fish-bearing streams,” said Alaska Governor Mike Dunleavy. “My Administration will stand up for the rights of Alaskans, Alaska property owners, and Alaska’s future.”

The EPA’s Office of Water Assistant Administrator Radhika Fox made the final determination under Section 404(c) of the Clean Water Act to preemptively prohibit and restrict the use of certain waters in the Bristol Bay watershed as disposal sites for discharges of dredged or fill material associated with developing the Pebble Deposit or any other similar project on State-owned lands in the area.

“The State of Alaska has a responsibility to develop its resources to provide for itself and its people,” said Governor Dunleavy. “Alaska does resource development better than any other place on the planet, and our opportunities to show the world a better way to extract our resources should not be unfairly preempted by the federal Government.”

Responding to EPA’s primary concern—protecting the fish and fish habitat in the Bristol Bay area—Alaska Department of Fish & Game Commissioner Doug Vincent-Lang said, “Alaska’s Title 16 permitting process would ensure protection of fish and fish habitat in the Bristol Bay area. But these statutory protections have been flouted by EPA, choked off before Alaska’s expert habitat and fish biologists had the opportunity to weigh in.”

“The precedent set by this action will percolate throughout the investment community,” said John Boyle, Alaska Department of Natural Resources Commissioner. “EPA is violating the rights guaranteed by the Alaska Statehood Act through the capricious exercise of its authority, robbing Alaskans of a multi-billion dollar asset on State lands that were specifically selected for their mineral potential without affording the project the predictable, fair, and science-based permitting process that all projects deserve.”

“EPA’s draconian decision—taken under a Biden Administration that so desperately wants to see domestic development of the natural resources needed to support our Nation’s renewable energy goals—is dumbfounding,” said Alaska Department of Environmental Conservation Commissioner Jason Brune. “This decision will drive development not only out of Alaska but out of the country, straight into third world countries where little care is given to environmental protection, environmental justice is non-existent, and child labor is exploited.”

Calling EPA’s decision “legally indefensible,” Attorney General Treg Taylor stated, “The precedent set by this preemptive veto—if valid—should alarm all permit applicants, investors, and States who wish to retain their traditional land- and resource-management authority. If EPA can rely on undefined terms and subjective standards not based in science to short circuit the Corps’ appeals process and the State’s permitting process here—it can do it anywhere.”

The Governor noted several flaws in the veto’s supporting documents. One is the veto’s prematurity: project plans are still working through the established permitting process, which the Army Corps of Engineers oversee. At this juncture, Alaska’s State agencies—the Alaska Department of Fish and Game, the Alaska Department of Environmental Conservation, and the Alaska Department of Natural Resources—have not yet weighed in through the State permitting process, the State’s 401 certification process, or through State input as a landowner.

The veto disregards the Alaska Statehood Act, violates the Clean Water Act, and departs from basic scientific methodology. Of particular concern is EPA’s failure to demonstrate why the Army Corps of Engineers was wrong when it reviewed the same scientific data but arrived at the opposite conclusion—that the proposed mine plan “would not be expected to have a measurable effect on fish numbers or result in long-term changes to the health of the commercial fisheries in Bristol Bay.”

In 2022, the State of Alaska was joined by Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Montana, Nebraska, South Carolina, Texas, Utah, West Virginia, and Wyoming in a letter of opposition filed concurrently with the Governor’s. “Decisions like these,” the States emphasized, “throw a wild card into the entire 404 permitting process.”

Additionally, united by a desire for greater predictability in the 404 permitting process, the Western States Water Council, representing 18 states and accountable to the Western Governors’ Association, passed a resolution urging EPA to adhere to established procedure, meaningfully consult with affected States, and adequately document its rationale before exercising the 404(c) veto power.

The full text of Governor Dunleavy’s Comments and the Multi-State Opposition Letter is available on the Department of Environmental Conservation’s webpage.