Posted on September 30, 2016 by Peter Van Tuyn
The Environmental Protection Agency’s use of its Clean Water Act 404(c) authority has received a fair amount of attention of late. Congressional hearings, court cases, media attention and, of course, Erik Fjelstad’s recent ACOEL blog.
EPA used this authority in the Mingo Logan coal mining-related situation after a 404 permit had been issued and the permit-regulated dredge and fill activities had been underway for some time. There is no doubt, as Erik points out, that uncertainty on the durability of a permit for a continuing dredge or fill activity, whether it be for coal mining or something else, is not ideal.
That said, there should be a way to revisit a permit if the impact of a continuing dredge or fill activity is severe and was not fully appreciated at the time of permitting. This is one situation that Congress sought to address in 404(c), and, in my opinion, without it, the integrity of the Clean Water Act to achieve its purpose of protecting waters of the United States would be at risk. Indeed, without such authority, those 404(c) permits for ongoing activities would look a lot like property rights. At the same time, this is not a common situation: EPA has finalized only two post-permit 404(c) actions.
Most common, though still rare, is EPA’s use of 404(c) authority to place restrictions on a 404 permit while the U.S. Army Corps of Engineers is processing a 404 permit application. In this time window, permit applicants know that there is uncertainty regarding whether and how their projects might go forward. EPA initiated the 404(c) process 29 times during the Corps’ permitting process, resolved eighteen without need for final 404(c) action, and came to final 404(c) action eleven times.
The final time window in which EPA can exercise its 404(c) authority occurs before a landowner or project proponent applies for a 404 permit. In one case EPA was confronted with a landowner who had three parcels of land in the Florida Everglades which he was planning on filling. As a start, he applied to the Corps for a 404 permit for two of those parcels. Using its 404(c) authority, EPA precluded the applied-for fill activity on all three parcels. Additionally, in the Mingo Logan example first introduced above, EPA not only addressed the existing permits in its decision, but noted that no future and similar 404 permits should subsequently be issued for those waters.
There is also one pending 404(c) action covering this pre-permit time window. It concerns the headwaters of Bristol Bay, Alaska, where a mining company has explored the copper, gold and molybdenum “Pebble” ore deposit. This large ore deposit underlies the largest wild salmon fishery in the world, which has supported the subsistence activities and culture of local people for thousands of years, a commercial fishery for over 130 years (in which the 2 billionth fish was caught this summer!), and a “bucket list” sport fishery. In this instance, EPA has proposed salmon-protective restrictions for 404 permits related to the mining of this ore deposit.
Should EPA finalize the Bristol Bay-related 404(c) proposal, the mining company could expect to get a 404 permit only if it included EPA’s restrictions. In this context, the mining company would have certainty before it applies for a 404 permit as to the applicability of those restrictions to its fill activity. Some have complained that EPA is overreaching in proposing to exercise this authority in advance of a permit application. For my part, this seems like the most ideal time for all interested parties – local people and the mining company most of all – to find out about such restrictions.
For what it is further worth, EPA has revisited some of those final 404(c) actions to allow for some dredge and fill activities. And notably, eleven of the thirteen final 404(c) actions occurred during Republican administrations (Reagan – 9, Bush I – 1, Bush II – 1). So if politics was involved in the actions, it didn’t fit the stereotype.
Disclosure: Bessenyey & Van Tuyn, L.L.C. represents a client that supports EPA 404(c) action to protect Bristol Bay’s wild salmon from the proposed Pebble mine.