Washington, D.C. (November 30, 2021) - On November 23, 2021, the United States Environmental Protection Agency (EPA) announced it would extend through May 31, 2022, the agency's reconsideration of a 2014 Proposed Determination to restrict mining associated with a specific mineral deposit within a vast area of Alaska. EPA's announcement comes after EPA asked the United States District Court for the District of Alaska to vacate the Agency's 2019 decision to withdraw the Proposed Determination. EPA's request signaled interest in reasserting the use of the agency's authority under Section 404 of the Clean Water Act to designate lands and waters within a State's boundaries as off limits for development projects that require a permit from the United States Army Corps of Engineers. The re-initiation of the 2014 Proposed Determination may have widespread implications outside of the specific deposit area in Southwest Alaska and may be used as a model to oppose or limit the size of all types of development projects or to put entire areas of the country off limits to development. Businesses should monitor closely as EPA decides whether to withdraw, revise, or repropose the 2014 Determination.

Section 404 of the CWA prohibits discharging dredged or fill material into the navigable waters of the United States unless authorized by the Corps through issuance of a permit. CWA § 404, 33 U.S.C. § 1344. However, the CWA also provides that the designation of a particular area for a disposal site can be prohibited or restricted by EPA "whenever [EPA] determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable effect on water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas." Id. § 1344(c). Specification of disposal sites by the Corps are subject to EPA's authority under Section 404(c) commonly known as EPA's veto authority. Id. § 1344(b). EPA has historically curtailed use of its 404(c) authority, preferring to work through its concerns with the Corps under a 1992 Memorandum of Agreement (MOA) that established a clear process for elevating and addressing EPA and Corps disagreements over Section 404 permits.

Accordingly, prior to 2014, EPA's "veto authority" was invoked only after the Corps failed to address the agency's concerns through the MOA process and upon receiving notice that the Corps intended to issue a permit. But in 2014, without any permit application under consideration with the Corps, EPA designated waters within the area of an entire watershed where authorization of any discharges associated with mining a substantial ore deposit would be prohibited automatically. EPA's action was criticized for effectively preempting any opportunity for project proponents to have their permit application fully considered and for predetermining that any proposal to mitigate impacts associated with a project as unlikely to offset negative impacts. EPA's Proposed Determination also sought to limit the size and scale of development projects by setting specific impact thresholds that could be used to deny future projects. The 2019 proposal to withdraw EPA's preemptive veto action recognized these implications and determined it better to follow the procedures outlined in the 1992 MOA prior to initiating Section 404(c) authority.

EPA's re-initiation of its 2014 Proposed Determination signals the agency's intent to use its veto authority to designate areas within the States as off limits to certain types of development. This action prejudges the Corps' Section 404 decisions and limits the States' ability to decide how to use their land and resources. Project developers that require CWA Section 404 permits should be on notice of these new risks.

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