Latest EPA Overreach Reveals Urgent Need for Congress to Act

The U.S. Environmental Protection Agency (EPA) released a proposed determination under 404(c) of the Clean Water Act (CWA) that would impose preemptive sanctions on potential development of a gold-and-copper mining prospect in Alaska. EPA is taking this action before the mine’s proponents have even submitted a 404 permit application to the U.S. Army Corps of Engineers and is basing the decision on a questionable watershed assessment conducted by the agency. The proposal came as the EPA was being sued by Pebble Limited Partnership, the group that is designing and planning the potential Pebble Mine, and the state of Alaska for allegedly exceeding its authority under the CWA. The state and Pebble Partnership argue the EPA should not be able to veto the project before a mine plan is finalized and evaluated through the permitting process. National Mining Association (NMA) President and CEO Hal Quinn commented on EPA’s latest action:

“The preemptive action taken by EPA to restrict development of the proposed Pebble Mine is a perfect example of the dangerous overreach by EPA that is undermining the investment climate in the U.S. for mining and other capital intensive projects. It underscores the need for congressional action to restore EPA’s traditional role in the Clean Water Act Section 404 permitting process.

“By making a determination about the potential impacts of a project before a company has even submitted application for review, EPA has bypassed the established lawful procedures of the CWA and the National Environmental Policy Act (NEPA) that are specifically designed to fully and fairly evaluate potential projects and provide project proponents with the due process of law.

“EPA’s actions trample the authority of the state of Alaska, preempt the role of other federal and state agencies and could potentially strand the mining company’s $700 million in capital investment. They also dramatically alter the rules of the game, upend congressional intent and deny the regulated community the due process of law.

“With the proposed determination, EPA has taken another step towards prematurely and arbitrarily exercising its 404(c) authority. I urge Congress to heed a recent request from 184 organizations representing a broad cross section of business and industry – including agriculture, construction, housing manufacturing, utilities, energy production and transportation sectors – for legislation that would set clear limits to EPA’s authority. Such action is necessary to provide project proponents with the certainty they need to invest and grow the economy.”

For more information on EPA’s retroactive and prospective actions under 404(c), see NMA’s website.