Regulatory push aims to reel in EPA authority

The Environmental Protection Agency's decision to retroactively withdraw a permit in West Virginia could end up having repercussions in Alaska, as some in Congress now seek to change the 42-year-old Clean Water Act that gave EPA the right to do so -- and which they say has given the agency too much authority.

In February, the U.S. Environmental Protection Agency initiated a 404(c) process under the Clean Water Act seeking to limit or restrict development at the Pebble deposit in Bristol Bay. While the process is underway, no permits can be issued for the proposed Pebble mine. The Clean Water Act is clear that EPA has authority to step in with 404(c) action at any time: before, during or even after the permitting process, "whenever it determines...that use of such sites for disposal would have an unacceptable adverse impact on one or more of various resources, including fisheries, wildlife, municipal water supplies, or recreational areas."

But when, in 2011, EPA exercised this authority to revoke a Section 404 permit that had been issued to a coal company four years earlier, the action spurred Senators David Vitter (R-LA) and Joe Manchin (D-WV) to try and change the language of the Clean Water Act. They want to limit the timeframe during which the agency can pursue 404(c) action. In a letter sent to EPA, Vitter and Manchin referenced the case of the Mingo Logan Coal Company, which had received a Section 404 permit in 2007, only to have it revoked by EPA in 2011 after a 404(c) process.  

In March 2014, Vitter and Manchin introduced Senate Bill 2156, also called the "Regulatory Fairness Act," which would prohibit EPA from "preemptive or retroactively vetoing a permit under Section 404 of the Act." Manchin said "it is simply common sense to allow companies that already have been granted permits to continue the work they have started," while Vitter said that the legislation is "necessary to protect the system and distinctly state what the EPA can and cannot do." Senators Lisa Murkowski (R-AK), Mitch McConnell (R-KY) and James Risch (R-ID) have since signed on as co-sponsors.

In Alaska, the Regulatory Fairness Act could have an impact on the 404(c) process that is currently underway in the Bristol Bay area. EPA's action in this case began before Pebble mine developers submitted a mine plan or permit application. EPA's actions were a topic of discussion at the recent Alaska Miners Assocation annual meeting in Fairbanks, according to this article from Petroleum News.

This story from KTUU gives an overview of SB 2156, including comments from Senator Murkowski and Bristol Bay business owner Brian Kraft.

This Cordova Times article details some of the opposition the legislation faces from local sportsman groups.

Learn More

"Regulatory Fairness Act of 2014" full text

More about 404(c)

The 404(c) process

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About Pebble Watch

Pebble Watch is an impartial, educational and fact-based initiative of the BBNC Land Department to disseminate information regarding the proposed Pebble Mine project to BBNC shareholders and interested parties. 

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