09.10.21

Alaska Delegation Responds to EPA’s Announcement to Reinstate the 404(c) Determination Process

WASHINGTON—U.S. Senators Lisa Murkowski and Dan Sullivan, and Congressman Don Young, all R-Alaska, issued the following statements after the EPA announced it is seeking to reinstate the process to make a Clean Water Act Section 404(c) determination over what it the agency called an effort to “protect certain waters in Bristol Bay, Alaska.”

“A year ago, the Army Corps of Engineers denied a section 404 permit for the proposed Pebble mine project. This denial came after years of study, including the preparation of a detailed and thorough Environmental Impact Statement. Many federal agencies, including the EPA, who was a cooperating agency, were involved in the regulatory review process and all reached the same conclusion – that the proposed Pebble mine project was contrary to the public interest. As I said then, that decision was the right one, reached the right way. The EPA’s announcement that they intend to reinitiate the process for making a section 404(c) determination under the Clean Water Act is not the right path forward. I understand that the EPA is taking this action at this time in response to a Ninth Circuit ruling regarding the 2018 withdrawal of the proposed determination, but it demonstrates precisely the problem that exists when the EPA uses their preemptive veto by effectively denying the opportunity for the environmentally rigorous permitting process to work. Further, a 404(c) does not deny a future administration the ability to withdraw the veto. This action does not provide the broader protections that the region and Alaskans want or need,” said Senator Murkowski.“What the region needs is certainty. We need to focus on building consensus to protect the Bristol Bay region permanently – not through controversial administrative actions, but rather through federal legislation that ensures a sustainable economy and provides equity for all stakeholders. This must be a home grown solution, which is why I’m working with Alaskans to develop legislation to provide a more comprehensive and lasting solution. I hope the Biden administration and my colleagues will join me in making it a reality.”

“For reasons I have previously stated last year, I opposed the Pebble mine after the Trump administration’s thorough, fair, and objective process which denied Pebble’s permit application. I have also consistently opposed the EPA’s legally dubious claim of preemptive veto authority over resource development projects on state lands in Alaska,” said Senator Sullivan. “For that reason, the EPA actions are deeply concerning given that they are moving to restart a process that seeks to give authority to EPA and the White House to preemptively shut down any other major project in our state without a fair hearing or going through the permitting process. The onslaught of federal overreach from the Biden administration attacking responsible development in Alaska should cause us not to trust the Biden administration when it says they will use the preemptive veto ‘sparingly.’ I have strongly opposed such a precedent because the EPA does not have the legal authority to preemptively veto economic development projects in Alaska, and such a precedent in the wrong hands could decimate our state’s economy. This is not the right way to provide certainty for Bristol Bay, stability for the state, and ensure we can responsibly develop our world-class resources in other parts of Alaska, for the benefit of all Alaskans.”

“It is remarkable that we find ourselves here again; another Administration is treating the proposed Pebble Mine like a political football. From the very beginning of the debate surrounding Pebble, I have been consistent in my position that we needed to allow the process and science play out. In November, we should have secured regulatory certainty. But now, the EPA is once again playing bureaucratic ping pong with Alaska,” said Congressman Young. “I remain opposed to the 404(c) process, which only seeks to strengthen the EPA’s ability to issue a preemptive veto. I continue to believe the question of Pebble is one for us to resolve ourselves here at home, and I will keep working to empower Alaskans to make decisions they feel are best for their communities.”

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