VETO-ING THE VETO? LIMITED OPTIONS REMAIN UNDER CLEAN WATER ACT SECTION 404(C) FOR EPA TO ALLOW DEVELOPMENT OF THE PEBBLE DEPOSIT.

Author:Leske, Kevin O.
  1. Introduction 799 II. The Bristol Bay Watershed and the Legal Framework for Its Protection Under the Clean Water Act 801 A. The Bristol Bay Watershed 801 B. The Clean Water Act 803 III. Background of the Proposed Mining Development and the Proposed Protection of the Bristol Bay Watershed 805 A. The Pebble Deposit and the Proposed Pebble Project 806 B. The Bristol Bay Assessment and the 2014 Proposed Determination 807 C. PLP's Challenges to the 2014 Proposed Determination 809 D. The Settlement Between PLP and EPA 810 IV. Veto-ing the Veto? 811 A. Can EPA Withdraw the 2014 Proposed Determination? 812 1. Judicial review and the applicable standard of review for EPA's withdrawal of the 2014 Proposed Determination 813 2. Withdrawing the 2014 Proposed Determination 814 B. Can EPA Be Compelled to Continue the CWA [section] 404(c) Process? 819 1. Challengers can bring suit against EPA to force EPA to continue with the CWA [section] 404(c) process 820 2. It is questionable whether the PLP Settlement's restrictions on EPA's authority to proceed with a final determination are enforceable 824 3. EPA's recent memorandum on CWA [section] 404(c) does not affect its current ability to move forward with the 2014 Proposed Determination 826 4. EPA's factual findings in the 2014 Proposed Determination and applicable legal principles demonstrate that it will be difficult for EPA to justify not finalizing that determination 828 V. Conclusion 833 I. INTRODUCTION

    On July 21, 2014, the United States Environmental Protection Agency (EPA) took its first step to protect the pristine Bristol Bay watershed in southwestern Alaska. (1) It proposed to restrict the use of certain waters in the watershed for the disposal of dredged or fill material associated with mining a large ore body. (2) EPA indicated that this step was necessary based on "the high ecological and economic value of the Bristol Bay watershed and the assessed unacceptable environmental effects that would result from such mining." (3)

    However, on July 19, 2017, EPA, under the new Trump Administration, signaled its intent not to move forward with the protection of Bristol Bay. (4) Specifically, EPA's new action requested comments on its plan to withdraw its 2014 proposed determination. (5) EPA explained that its rationale for withdrawing its previous determination was based on a legal settlement it reached with Pebble Limited Partnership (PLP), a mining company resolute in developing the area, as well as then-EPA Administrator Scott Pruitt's new "policy direction." (6) Administrator Pruitt's decision to settle the case had come on the heels of a private meeting with PLP's president. (7) Then, following the meeting and without consulting EPA's scientific staff who had been working on the issue for close to a decade, he directed EPA Regional Office 10 to withdraw its 2014 Proposed Determination, which sought to protect the area pursuant to [section] 404(c) of the Clean Water Act (CWA). (8)

    CWA [section] 404(c) gives EPA the authority to prohibit (in other words, "veto") an area as "a disposal site" under the act. (9) The section specifies that such a decision be made "whenever" EPA determines "that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas." (10) Acting pursuant to this section, EPA proposed in 2014 to protect the Bristol Bay watershed, which EPA recognized as having "unparalleled ecological value, boasting salmon diversity and productivity unrivaled anywhere in North America." (11)

    Unsurprisingly, local residents, as well as fishing, Alaskan Native, and environmental groups decried EPA's audacious step to retract its previously proposed protection. (12) On the other hand, PLP and other mining advocates applauded EPA's proposal to not move forward with the restriction. (13) They alleged that the constraint of such use violated due process and exceeded EPA's statutory authority. (14) And now an application for the development of the Pebble Deposit is pending. (15) Naturally, a legal showdown concerning the proposed "Pebble Mine" is inevitable and is certain to raise many statutory, regulatory, administrative, and constitutional law issues over the coming years.

    On February 28, 2018, however, in a surprising move, EPA temporarily suspended the proceeding to withdraw the 2014 Proposed Determination, thereby leaving it in place. (16) But EPA further indicated that it "intends at a future time to solicit public comment on what further steps, if any, the Agency should take under [section] 404(c) ... in light of the permit application [for the Pebble Mine] that has now been submitted to the U.S. Army Corps of Engineers." (17)

    What steps can (and, arguably, must) EPA take in a future action involving CWA [section] 404(c) and the Pebble Mine? And what if EPA again attempts to withdraw its 2014 Proposed Determination? This Article examines these key questions. First, it briefly introduces the on-going dispute over the Pebble mineral deposit and explains the importance of the Bristol Bay watershed. Next, the Article explores CWA [section] 404(c)'s "veto" process. It then analyzes EPA's 2017 Proposal to Withdraw the 2014 Proposed Determination and assesses whether a future attempt to withdraw the 2014 Proposed Determination would be successful. Finally, it explores whether EPA can be compelled to move forward with its protection of the Bristol Bay watershed under CWA [section] 404(c).

    The Article explains that a court is unlikely to permit EPA to withdraw the 2014 determination on the same basis that EPA proposed to withdraw it in 2017. Moreover, in light of the 2014 determination, EPA's options are now limited with respect to allowing development of the Pebble Deposit. The Article concludes by proposing that--notwithstanding the settlement agreement with PLP and EPA's new policy on its CWA [section] 404(c) authority--principles of administrative, constitutional, and environmental law support arguments that EPA can be compelled to continue the CWA [section] 404(c) process to prohibit the disposal of mining waste into this critically sensitive area.

  2. THE BRISTOL BAY WATERSHED AND THE LEGAL FRAMEWORK FOR ITS PROTECTION UNDER THE CLEAN WATER ACT

    This Part briefly introduces the Bristol Bay watershed to demonstrate the importance of the area. Next, it summarizes the legal framework under the CWA to protect its resources, including [section] 404(c). This will serve as a primer to a discussion in Part III of the proposed mining development of the Pebble Deposit and the proposed protection of the Bristol Bay watershed by EPA, and then an analysis in Part IV of the options that now remain for EPA with respect to the development of mineral resources in the watershed.

    1. The Bristol Bay Watershed

      Located in southwestern Alaska, the Bristol Bay region is approximately 40 million acres of land containing "myriad mountains, rivers, lakes, and wetlands" (18) that EPA regards as "a globally significant resource with outstanding value." (19) In turn, six distinct watersheds comprise the Bristol Bay watershed--the Togiak, Nushagak, Kvichak, Naknek, Egegik, and Ugashik River watersheds. (20) These areas have been described as a "unique sprawling, permeable, and porous network of creeks and streams" (21) that EPA has identified as being "of unparalleled ecological value, boasting salmon diversity and productivity unrivaled anywhere in North America." (22)

      The watershed is home to "a largely pristine, intact ecosystem with outstanding ecological resources," including approximately thirty fish species, forty terrestrial mammal species, and 200 bird species. (23) Its importance as a watershed stems from its provision of "connected habitats--from headwaters to ocean--that support abundant, genetically diverse wild Pacific salmon populations... [which] in turn, maintain the productivity of the entire ecosystem, including numerous other fish and wildlife species." (24)

      EPA's scientific assessment in 2014 concluded that the watershed "supports the largest sockeye salmon fishery in the world" (25) where "[f]or generations upon generations tens of millions of salmon reliably return to Bristol Bay, year after year." (26) Annually, Bristol Bay hosts "the world's largest runs of sockeye salmon, producing approximately half of the world's sockeye salmon." (27) As EPA concluded, this salmon population is "the most abundant and diverse populations of this species remaining in the United States." (28) Likewise, its Chinook salmon runs are also close to the world's most abundant, and the area is also home to substantial coho, chum, and pink salmon populations. (29)

      Significantly, Bristol Bay's salmon populations are wholly-wild, making it "one of the last places on Earth with such bountiful and sustainable harvests of wild salmon." (30) EPA estimates that approximately "70% of the sockeye and large numbers of the coho, Chinook, pink, and chum salmon are harvested in commercial, subsistence, and recreational fisheries before they can return to their natal lakes and streams to spawn." (31) The economic value of the salmon resources are therefore significant, generating "approximately $480 million in direct economic expenditures and provided employment for over 14,000 full- and part-time workers." (32)

      The Bristol Bay region is also "home to 25 federally recognized tribal governments... who have maintained a salmon-based culture and subsistence-based way of life for at least 4,000 years." (33) But the area also contains valuable mineral resources, and--absent adequate protection by state and federal laws--the "potential for large-scale mining activities in the watershed has raised concerns about the impact of mining on the sustainability of Bristol Bay's world-class commercial, recreational, and subsistence fisheries." (34)

    2. The...

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