On January 15, the Environmental Protection Agency (“EPA”) issued its final Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska, concluding that large-scale mining in the region poses risks to salmon, wildlife, and Native Alaska cultures.

EPA initiated its assessment of the Bristol Bay fishery and potential impacts from large-scale development in response to concerns over Pebble Mine development voiced by several Southwest Alaska tribes, commercial fishing groups, and others that have written to the EPA requesting that the agency exercise its veto authority to preemptively remove the region from permitting under Section 404 of the Clean Water Act (“CWA”).  Section 404 of the CWA prohibits the discharge of dredged or fill material into waters of the United States without a permit issued by the United States Army Corps of Engineers (“USACE”).  Waters of the United States are broadly defined by regulation to include interstate wetlands, and USACE has traditionally exercised its jurisdiction over a wide range of often isolated water bodies.  33 C.F.R. § 328.3(a)(2).

Permits under Section 404 are typically administered by USACE, but the CWA grants EPA authority to prohibit or deny a permit, overriding USACE’s permitting authority, under Section 404(c).  EPA may initiate the 404(c) veto process if it determines that the impact of a proposed permit presents “unacceptable adverse effects,” defined in relevant part as likely to result in significant loss of or damage to fisheries, shellfishing, wildlife habitat, or recreation areas.  40 C.F.R. § 231.2(e).  EPA’s use of its veto authority is rare, with only 13 examples despite USACE’s processing approximately 80,000 permits per year.

The EPA’s watershed assessment is the result of the agency’s investigation, and as the report authors state, “It does not reflect any conclusions or judgments about the need for or scope of potential government action, nor does it offer or analyze options for future decisions.”  EPA initiated the Bristol Bay watershed assessment with the stated purpose of establishing the scientific foundation for any decisions EPA may make in the future.  With the release of the final report, it will be interesting to see if EPA chooses to preemptively act under Section 404(c) or simply rely on the report to inform future decisions should any specific development project, like the proposed Pebble Mine, reach the permitting stage.