EPA Administrator Scott Pruitt issued a memo today proposing to gut his own authority under the Clean Water Act to block or restrict highly destructive projects, such as the proposed Pebble Mine in Bristol Bay, Alaska.
Section 404(c) of the Clean Water Act authorizes the EPA Administrator to prohibit, withdraw, deny or restrict the discharge of dredged or fill material “whenever” he determines an “unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”
Congress gave EPA broad authority to protect water resources from unacceptable adverse effects “whenever” the time is right. Courts have also upheld this interpretation, finding that “whenever” means EPA can act “whenever” – before, during, or after permitting.
Enter Scott Pruitt, who just asked EPA’s water office to propose regulations restricting the agency’s 404(c) authority to a very narrow window. Pruitt would intentionally hamstring EPA from stopping an egregious dumping project before a permit application or after the Army Corps issues a permit.
Pruitt’s proposed rollback ignores Congressional intent and judicial interpretation—as well as the common sense meaning of “whenever.”
It’s nothing more than an industry give-away. And it’s specifically aimed at helping the Pebble Mine—a giant gold and copper mine proposed at the headwaters of a region that produces half of the world's sockeye salmon; contributes $1.5 billion-annually in economic activity; supports 14,000 jobs; and provides the lifeblood of indigenous culture and subsistence.
In 2010, tribal leaders, commercial fishermen and sportsmen in Alaska petitioned EPA to use its 404(c) authority to protect Bristol Bay from the Pebble Mine. After conducting a thorough three-year, twice-peer reviewed scientific assessment that found the Pebble Mine would result in “significant” and even “catastrophic” harm to the Bristol Bay watershed, EPA issued a proposed determination under Section 404(c) that would place common-sense restrictions on the Pebble Mine—sparking thanks from the residents and tribes of Bristol Bay and outrage from the mining industry.
Pebble tied up EPA’s proposed determination in court for the next three years, until it found a friend in Pruitt.
Just one hour after meeting with Pebble CEO Tom Collier last year—and without consulting with or being briefed by agency scientists or career staff—Pruitt unilaterally decided to reverse EPA’s proposed restrictions on the Pebble Mine and settle the lawsuit favorably to Pebble.
This backroom deal enabled Pebble to find a new investor—First Quantum Minerals—and apply for a 404 permit with the Army Corps of Engineers. But First Quantum has since walked away, leaving Pebble without the resources necessary to permit (let alone build) its mine.
Pruitt to the rescue--again!
Just a little hamstringing of agency authority and voilà – a terrible project is back on life support. (Pebble, for its part, immediately described Pruitt’s boon as “significantly positive” for the project and said it already had strong investor interest. Thanks, Pruitt.)
Pruitt promotes the profits of a foreign mining company over thousands of American jobs. He completely ignores the will of Alaskans, a strong majority of whom oppose the Pebble Mine. (Opposition in the Bristol Bay region is even stronger, where over 80 percent of residents and 85 percent of commercial fisherman oppose the Pebble Mine.)
And he overlooks (or, more likely, obfuscates) the fact that EPA has used its 404(c) authority sparingly. Out of the hundreds of thousands of 404 permits issued by the Army Corps of Engineers in the history of the Clean Water Act, EPA has used Section 404(c) only 13 times. Of those instances, 11 were under Republican administrations.
Pruitt is persecuting EPA from within and providing a lifeline to the Pebble Mine.
Make no mistake. This is a direct attack not only on EPA and the Clean Water Act, but also on the people, salmon, wildlife, and 14,000 fish-related jobs that Bristol Bay supports—and it must not stand.