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Science, Law & the Environment Emerging Topics in Environmental Law

Pebble Mine Jumps the Gun on Challenge to EPA’s 404(c) Authority

Posted in Clean Water Act, Emerging Policy, Endangered/Threatened Species, Natural Resources and Environment, Project Permitting

Ruling from the bench on Friday, Judge H. Russel Holland dismissed Pebble Limited Partnership’s claims that the EPA overstepped its authority in initiating proceedings under Section 404(c) of the Clean Water Act. (The written opinion is here.) EPA advised Pebble Partnership by letter in February 2014 that it was beginning the process under 404(c) to review potential adverse environmental effects of mining the Pebble deposit. Pebble Partnership sued in July, claiming that the EPA could not initiate Section 404(c) process until a permit application was submitted.

The Court dismissed Pebble Partnership’s claim holding that the EPA’s February letter commenced proceedings; it did not conclude them and was therefore not a “final”  agency action over which the Court had jurisdiction. For legal nerds, the opinion contains a succinct primer on “final agency action” under the Administrative Procedure Act, and also contains a good summary on the mechanics of the Section 404(c) process, a little-used component of the Clean Water Act.

This is not the end of the Pebble Mine administrative and legal proceedings. The EPA’s 404(c) process is not yet complete – on July 18, 2014, the EPA published notice of its “proposed determination to restrict the use of certain waters in the Bristol Bay watershed for disposal of dredged or fill material associated with mining the Pebble deposit[.]” It’s now open for public comment. A second lawsuit filed by Pebble Partnership claims that the EPA colluded with opponents of the Pebble mine. That lawsuit is also in front of Judge Holland, with the Pebble Partnership’s preliminary injunction motion currently scheduled to be heard by Judge Holland on November 24th.

An exploration camp sits on top of the Pebble deposit, one of the largest undeveloped copper, gold and molybdenum deposits in the world. Photo by USEPA.

(Disclosure:  Our firm represented Trout Unlimited, which intervened in the first lawsuit on the side of the EPA.)