About Section 404(c)

Current Status

The public comment period for EPA’s Proposed Determination ended September 19, 2014, after which EPA began reviewing hundreds of thousands of public comments. However, in November 2014, U.S. District Court Judge H. Russel Holland granted a preliminary injunction, ordering EPA to stop work on activities related to the 404(c) process until he is able to hear the merits of a civil suit brought by the Pebble Limited Partnership. The Judge’s ruling delays EPA’s work until late spring or early summer 2015.

Section 404(c) is part of the Clean Water Act (CWA), legislation passed in 1972 that aims to maintain or restore the integrity of the nation’s waters, including its wetlands. Section 404 of the CWA regulates dredge and fill materials entering wetlands, streams or other waters. Under Section 404, the U.S. Army Corps of Engineers issues permits for activities that would place fill in wetlands. The permitting process, overseen by EPA, requires that projects show they can take appropriate steps to avoid, minimize, and offset adverse impacts.

Part C of Section 404 authorizes the EPA to withdraw, deny, prohibit or restrict those areas to discharge – before or after a permit has been submitted – if it determines that a discharge of fill would results in a “significant loss or damage to fisheries, shellifishing, or wildlife habitat or recreation areas.”

Use of Section 404(c) in Bristol Bay

In February 2014, EPA announced its intention to use its authority under Section 404(c) to protect the salmon fishery in Bristol Bay “from the potentially destructive impacts of the proposed Pebble Mine.”

Steps taken in Section 404(c) process to date

Consultation Period – The first part of the 404(c) process, the “Consultation Period,” ended April 29, 2014. The Consultation Period is a time during which developers can provide additional information to EPA for its consideration. Northern Dynasty Minerals submitted the following documents, which state a case against the 404(c) process altogether.

Development of Proposed Determination – EPA prepared a 214-page document that includes sections on the region’s ecological resources, basis for the proposed determination and the proposed restrictions. Dozens of reference materials are cited.

Release of Proposed Determination – EPA released the Proposed Determination on July 18, 2014, detailing retrictions it is proposing for disposal of dredge and fill in the area near the Pebble deposit. The agency stated that it based these recommendations on a “conservative analysis” of potential risks of adverse effects (it did not include potentail risk due to accidents or for a mine operating longer than 20 years).

Public Comment Period – The Proposed Determination was open to public comment from July 18 to September 19, 2014. The agency says all comments will be thoroughly reviewed and considered.

Public Meetings – Public meetings were held the week of August 12-15, 2014 in Anchorage, New Stuyahok, Nondalton, Kokhanok, Dillingham, Iliamna and Igiugig. Around 300 people provided testimony in person.

Next steps

Recommended Determination. The EPA Regional Administrator reviews public comments and then decides to withdraw the Proposed Determination or prepare a Recommended Determination and forward it to EPA headquarters for review. The EPA had set February 4, 2015 as the deadline for this stage of 404(c) action, but a federal preliminary injunction has delayed EPA’s work on all 404(c) activity.
Final Determination. If a Recommended Determination is submitted to EPA headquarters, the agency acts within 60 days to modify, rescind or approved it. This decision is published as the Final Determination.

Details

Pebble Watch Overview of Proposed Determination – Highlights, chapter guide, terminology and a timeline of the 404(c) process.

U.S. EPA Website: Clean Water Act Section 404(c): “Restriction of Disposal Sites”

U.S. EPA Proposed Determination: Executive Summary • Full version

Pebble Watch Guide to the EPA and Bristol Bay: Read online • Download PDF (March 2014)

Pebble Watch Guide to the 404(c) process (March 2014)

Correspondence

EPA letter announcing 404(c) action (February 28, 2014)

EPA Notification of extension: Response to State of Alaska • Response to Pebble Limited Partnership (both March 13, 2014)

Northern Dynasty response to EPA • As announced on Pebble Partnership site (April 29-30, 2014)

Bristol Bay Watershed Assessment

On U.S. EPA’s “Bristol Bay” pages, learn more about the Watershed Assessment, the document that informed EPA’s decision to initiate the 404(c) process.