On Jan. 23, the Environmental Protection Agency and the Department of the Army finalized the Navigable Waters Protection Rule, which drastically changed the jurisdiction of water bodies protected under the Clean Water Act, or CWA. This multi-year process was initiated on Feb. 28, 2017 at the signing of the ‘Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule.’
While many Alaskans may applaud the apparent elimination of federal overreach, a closer look at the details of the rule change may alarm you.
The Clean Water Act is the primary federal law regulating the discharge of pollutants into “waters of the United States." It also makes discharging pollutants, such as oil or mining waste, a federal crime when performed without a permit. For example, as a result of the Exxon Valdez oil spill, the federal government was able to indict Exxon because it violated the CWA as well as other statutes.
To comply with the CWA, mining companies must apply for a Section 404 permit if they plan on discharging dredge or fill material into “waters of the United States.” A fundamentally complex process, the Section 404 Permit Program is administered by the Army Corps of Engineers with substantial input from the EPA, the U.S. Fish and Wildlife Service and the general public.
It is the 404 section that gave the EPA the authority to issue what is commonly referred to as the “pre-emptive veto.” In 2010, nine tribes from Bristol Bay made requests to the EPA to exercise their pre-emptive veto authority in an attempt to stop Pebble mine from being developed. Originally approved, the veto was overturned this past summer after Gov. Mike Dunleavy met with President Donald Trump aboard Air Force One to discuss mining issues.
The Pebble Partnership has specifically lobbied for changes to the 404 pre-emptive veto process for years.
It is important to understand that a 404 Permit is only required if a project will affect water bodies that fall under the legal WOTUS definition. Prior to Jan. 23, the Pebble Partnership was required to file a 404 Permit because the types of wetlands and waters prevalent throughout the landscape of their project area fell under the legal WOTUS definition. Water is everywhere on the Pebble site. According to Pebble’s own Draft Environmental Impact Statement, the mine site area is 41% wetlands and other waters; 90% of the natural gas pipeline area is composed of wetlands and other waters.
After Jan. 23, the wetlands and waters that dominate the landscape of the Pebble mine area are no longer considered “waters of the United States” and therefore not subject to the permitting requirements of the Clean Water Act.
Discontinuous interior wetlands, lakes and ephemeral streams, which make up much of the Pebble mine site as well as the majority of Alaska’s tundra and taiga ecology, have been eliminated from the jurisdiction of the Clean Water Act. Altering, dredging or filling these water bodies with mine waste will no longer require a 404 Permit. Damaging or destroying these wetlands and waters, intentionally or by accidents such as a tailings dam failure, will no longer be a federal crime. Additionally, when the 404 Permit process is eliminated, citizens lose their opportunity to provide public commentary on a proposed project.
It is easy to see how recent changes to the CWA benefit the Pebble project both in its current and suspected future design. Given the close relationship between the Pebble Partnership, the Dunleavy administration and the Trump administration, the public deserves to know if any actions were taken that put personal interests and corporate profits ahead of the interests of all Alaskans. As stated in the Alaska Constitution, it is the policy of the state to make resources “available for maximum use consistent with the public interest” (Article 8, Section 1). It is not in Alaskans’ interest to eliminate environmental laws, accountability, and legal responsibilities that would apply to companies developing projects in the state.
I encourage Alaskans to reach out to the governor’s office and their local legislators to demand an explanation of the recent changes to the “waters of the United State” definition in the Clean Water Act and request a sustainable path forward to ensure Alaska’s ecosystems, culture and way of life are not destroyed to serve Outside interests.
Jessica Metz was born and raised in Fairbanks. She is a proud graduate of Lathrop High School and credits her public education with teaching her how to think critically, question those in power, and research primary source material. She currently practices architecture in Boston, Massachusetts.
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