EPA Action Determinative – Pebble Permit Denial Affirmed
Nearly a year ago, the Alaska District of the U.S. Army Corps of Engineers (Corp) was tasked with reviewing portions of its denial of a key Clean Water Act 404 permit for the Pebble project. This week the Corps announced that its decision makers could not issue Pebble a permit since the EPA has already prohibited/restricted the area from development. In light of this, the Corps did not conduct further review of the initial denial decision, and it affirmed that the Pebble permit application is denied “without prejudice.”
The backstory
The Corps initially denied the Pebble 404 permit in November 2020. The Pebble Limited Partnership (PLP) appealed the decision in early 2021. That appeal went to the Corps’ Pacific Ocean Division (POD), which determined that a number of PLP’s arguments in the appeal did not have merit. It also determined that five arguments did merit reconsideration by the Alaska District. In its memo detailing those items, the POD asked the Alaska District to take the EPA’s Final Determination into account during its review process. The EPA Final Determination, issued in January 2023, effectively blocks development at the Pebble deposit because it restricts or prohibits dredge and fill disposal activities at certain water bodies. In its April 2024 public notice, the Alaska District noted that it had conducted a “technical evaluation of the Administrative Appeal Decision” and had made a decision that the EPA’s Final Determination was a “controlling factor.”
A unique situation
The Alaska District rarely receives a remand of a permit denial appeal. The last remand was 14 years ago. Aside from the Pebble permit denial, there have been seven previous permit denial appeals. These took place between 2003 and 2010. Just three of them were remanded back to the Alaska District for review. Of those, one was issued a permit. The existence of the EPA’s veto action also adds a unique set of circumstances. The EPA has only used its 404(c) authority three times in the last 30 years, and 14 times overall.
More to come?
PLP’s owner, Northern Dynasty Minerals (NDM), and the State of Alaska, are suing the federal government, seeking a reversal of the EPA’s Final Determination. If they are successful, there may be a window open to continue seeking a 404 permit, since the Corps denied the permit application without prejudice. Ron Thiessen, CEO of NDM, stated in a press release that the company’s “primary focus remains on removing the EPA veto, either through federal government action or through our existing legal proceedings in conjunction with the State of Alaska. Once the veto is cleared, it opens the way for us to re-engage with the USACE.”
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