Examining Section 404(c) of the Clean Water Act
March 2014 note: View an update to the 404(c) process chart seen below.
Now that the Environmental Protection Agency (EPA) has completed its study of the Bristol Bay watershed, it must respond to a request from several federally recognized Tribes that have asked the agency to protect the area from impacts of large-scale mining. Specifically, the Tribes asked EPA to prohibit development in the Bristol Bay watershed by using Section 404(c) of the Clean Water Act. This article explains Section 404(c) and describes the process EPA would likely use if it were to decide to initiate it.
Clean Water Act
The Clean Water Act, passed in 1972, aimed to limit the release of toxic chemicals into our nation’s waterways and keep surface waters safe for human sport and recreation. Section 404 of the act 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 requires that projects show they can take appropriate steps to avoid, minimize, and offset adverse impacts.
EPA’s authority: Section 404(c)
The EPA, which oversees the Dredge and Fill program, has the ultimate say in whether permits are issued. If a permitted discharge of fill would result in a “significant loss or damage to fisheries, shellfishing, or wildlife habitat or recreation areas,” Part c of Section 404 authorizes the EPA to essentially “veto” those dredge and fill permits. The EPA’s veto power has been used sparingly. According to the Corps of Engineers, 60,000 permits are processed each year. EPA has utilized its veto authority 13 times in the 42 years since the act was passed, and never in Alaska. The EPA does not have to wait until developers apply for a Dredge and Fill Permit to utilize its Section 404(c) authority. If the agency determines that discharging fill would have unacceptable adverse impacts, it can withdraw or restrict an area to disposal of fill before a permit application has been submitted. In fact, in all but two of the 404(c) actions EPA has taken, it has initiated the process before a permit was issued.
What’s the process for restricting an area under 404(c)?
If EPA were to use its Section 404(c) authority to limit or restrict mining in the Bristol Bay watershed, it would be required to follow a systematic process (see graphic), including a public comment period.
What happens if EPA does not use 404(c) authority?
Since Anglo American withdrew from the Pebble project last fall, Northern Dynasty Minerals (NDM) has been looking for a new investor. NDM CEO Ron Thiessen has stated that the developer’s Board of Directors will make a decision this year on whether to move into permitting, with or without a new investor. An application for a Dredge and Fill permit would trigger the National Environmental Policy Act (NEPA), which involves multiple opportunities for public involvement; scientific analyses of environmental, economic and social impacts; and specific requirements for mitigation of potential impacts. The NEPA process would require several years.
Read more
List of previously vetoed projects.
Seattle Journal of Environmental Law article: “Using Section 404(c) of the Clean Water Act to Prohibit the Unacceptable Environmental Impacts of the Proposed Pebble Mine”
This article previously referenced a “current” 404(c) process underway in Kentucky state. However, that case has been resolved and did not lead to 404(c) action by the EPA.