EPA’s Pruitt Takes Sole Control Of Water Decisions

On March 30, 2018, Environmental Protection Agency (EPA) Administrator,

Scott Pruitt issued a memorandum making him the final authority on projects impacting our nation’s water.

Before Pruitt, EPA regional administrators could veto Section 404 development permits issued by the U.S. Army Corps of Engineers (USACE) for projects impacting the nation’s waterways regulated under the Clean Water Act. Generally, EPA’s regional authorities would only step in when the project is complicated, controversial or legally challenged.

Among other things, EPA officials would conduct or fund scientific studies identifying to potential water resource problems, thus ensuring water quality and availability necessary to protect human and ecosystem health.

Pruitt’s decision to become the sole arbitrator in projects impacting water arguably stemmed from his friendship with Andrew P. Miller, a lobbyist [i] for Pebble Mine investors.  Three major investors in Pebble Mine have dropped out since 2011. However, First Quantum Minerals Ltd., also a Canadian company, has agreed to invest $150 million over the next four years.

California State Treasurer John Chiang and New York State Comptroller Thomas DiNapoli have both questioned First Quantum’s investment. Public pensions in both states hold shares in First Quantum.

“In my view, participation in the Pebble Project would be the antithesis of sustainable business practices and could create undue risk to the long-term value of the Fund’s investments in First Quantum Minerals and to the sustainability of the Bristol Bay region,” DiNapoli wrote.

The proposed mine, about 200 miles southwest of Anchorage, sits in the middle of the Bristol Bay watershed, an array of wetlands, streams, and rivers that boasts the world’s largest runs of wild Pacific salmon, including half of the world’s annual sockeye salmon catch.

Overall, the Bristol Bay watershed’s ecological resources generated nearly $480 million in direct economic expenditures and sales and provided employment for over 14,000 full- and part-time workers in 2009, the EPA said. Commercial fishing in the area alone is a $300-million-a-year industry that employs 11,000 people.[ii]

The proposed Pebble Deposit Area mine, the Obama EPA said, will result in a “complete loss of fish habitat” in the region. And Wall Street investors have labeled it a worthless boondoggle. [iii]

Much of this debate concerns the tentative plan to impound large amounts of water, waste rock, and mine tailings behind several earthen dams at the mine site.

Proponents argue that the mine will create jobs, provide tax revenue to the state of Alaska, and reduce American dependence on foreign sources of raw materials.

Pruitt’s move is a step in dismantling the Clean Water Rule, a regulation proposed in 2015 to clarify what falls under federal oversight.

The rule is a regulatory attempt by the EPA and the USACE to clarify water resource management in the United States under a provision of the Clean Water Act of 1972.[iv] The regulation defined the scope of federal water protection more consistently, particularly over streams and wetlands which have a significant hydrological and ecological connection to traditional navigable waters, interstate waters, and territorial seas. It is also referred to as the Waters of the United States rule, which defines all bodies of water that fall under U.S. federal jurisdiction.

In 2017 the Trump administration announced its intent to review and rescind or revise the rule.[v]

On January 22,2018, The Supreme Court lifted a nationwide stay on the rule. Nonethless, the  Trump administration formally suspended the rule until February 6, 2020, thereby giving Pruitt more time to issue a draft proposal of replacement water regulations with looser regulatory requirements and arguably more time to take complete control over decision making under the rule.

Endnotes:

[i] Pebble Limited Partnership spent $790,000 on federal lobbying in 2017 and recently hired a firm led by former House Natural Resources Chairman Richard Pombo (R-Calif.)

[ii] Okeson, Sarah, “EPA And Army Corps Stifle Opposition to Controversial Alaska Mining Project Just 30 Days for the People to Comment on Pebble Mine; No Microphones for Public Hearings

[iii] Ibid.

[iv] U.S. Army Corps of Engineers and Environmental Protection Agency (EPA). “Clean Water Rule: Definition of ‘Waters of the United States’.” Final Rule. Federal Register, 80 FR 37053. 2015-06-29.

[v] USACE and EPA. “Intention To Review and Rescind or Revise the Clean Water Rule.” Notice. Federal Register, 82 FR12532. 2017-03-06.