In April 2024 the Alaska District of the U.S. Army Corps of Engineers (Corps) was given a unique task: look over portions of its November 2020 denial of a Clean Water Act 404 permit that effectively stopped development of the Pebble prospect in Bristol Bay.
Pebble developers had appealed that decision to the Pacific Ocean Division (POD) of the Corps, which determined that five of their arguments had merit. The permit decision was remanded “to the Alaska District Engineer for reconsideration, additional evaluation, and documentation sufficient to support the decision.”
The Alaska District has been working on the plan for how it will proceed with the review. After multiple extensions, the Corps is now targeting Monday, November 27 as the completion date. It hasn’t publicly stated the reason for delay.
Waters of the U.S. and the Clean Water Act
In May 2023, the U.S. Supreme Court decision in Sackett vs. EPA decision redefined what can be considered “waters of the U.S.,” which limits federal protections for wetlands throughout the nation. It affects the 1972 Clean Water Act, which has many programs that apply only to “waters of the U.S.” One of these is the Clean Water Act Section 404: Permitting Discharges of Dredged or Fill Material.
It is under Clean Water Act Section 404 that the Pebble development hit a major stumbling block, first with the Corps’ 2020 denial of a 404 permit and then with EPA’s January 2023 decision under the Clean Water Act Section 404(c) to limit dredge/fill activities in certain waters near the Pebble deposit.
How might the Sackett decision affect those regulatory actions, and could that analysis contribute to the Corps’ delay in charting a path forward for the review of the 404 permit denial?
State of Alaska Knocks on Supreme Court’s Door
Additionally, in July 2023 the State of Alaska filed an “original action” bill of complaint asking the Supreme Court to a review a case directly rather than having it progress through lower courts first. In its complaint the State argues that the federal government has used its regulatory power under the CWA to thwart a mineral development project on state lands in Alaska and that this contravenes the Statehood Act and the Cook Inlet Land Exchange.
The State is asking the Supreme Court to declare the January 2023 EPA 404(c) Final Determination is unlawful and order the EPA to set it aside. However, if the Supreme Court decides to hear the case, an outcome in the State’s favor could have an effect beyond the EPA’s 404(c) final determination. The State’s arguments could also apply more broadly to other federal actions that keep Pebble from moving forward, like if the the Corps were to uphold its 404 permit denial.
Northern Dynasty Minerals, the Pebble Limited Partnership, and several industry groups, including the Alaska Miners Association, the Resource Development Council for Alaska, and the Alaska Industrial Development and Export Authority, have filed amicus briefs to support the State’s effort to get EPA’s 404(c) decision struck down.
Will the Supreme Court open the door to hearing the State of Alaska’s case?
We may know by the end of the year. According to the Supreme Court docket, the government has until November 9, 2023 to file its response to the complaint.
Our July 2023 article details portions of the permit decision the Alaska District must review, along with a side-by-side chart of Corps and EPA decisions affecting Pebble mine development.