U.S. Army Corps in holding pattern on Pebble

Agency to wait for Supreme Court action on State of Alaska complaint

The U.S. Army Corps of Engineers (Corps) Alaska District obtained another extension on its deadline to develop a plan for how it will review portions of its denial of a key Clean Water Act 404 permit. After that November 2020 denial, the Pebble Limited Partnership (PLP) appealed to the Corp’s Pacific Ocean Command, which determined that some of Pebble’s arguments had merit – and that the Alaska District should review them again. That decision was announced in May 2023, but the Alaska District has yet to finalize a process for that review.

The latest deadline, November 27, came and went with notice from the Corps that another extension has been granted: “As you are likely aware, the State of Alaska filed a bill of complaint in the Supreme Court challenging the Environmental Protection Agency’s exercise of its Clean Water Act, Section 404(c) authority. The Pacific Ocean Division Commander has granted an extension until the Court acts on Alaska’s filing.”

The Division Commander had initially instructed the Alaska District to “review the appeal decision in light of the EPA’s Final Determination as the District considers its next steps,” so waiting to see if the Supreme Court weighs in makes sense.

The Supreme Court should decide by early 2024 which cases and complaints it will take up. If the Court doesn’t take up the State’s bill of complaint, we could expect to see a plan from the Corps in the first quarter of 2024. If the Court does take it up, there are many factors that will affect the timeline.

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.