Gina McCarthy, who has been nominated to take over as administrator of the EPA, did little during an appearance at the Senate environmental committee last week to allay concerns about the agency’s perceived abuse of the Clean Water Act to shut down major local projects.
“I’m not any more concerned than I was before,” Dan McGroarty, the president of the American Resources Policy Network, told The Daily Caller News Foundation. “I still hold to my position, and my organization’s position, which is that we don’t want to see Section 404 [of the Clean Water Act] used to stop preemptively a project [from being] reviewed even before there is a project to review.”
“I really do hope that that doesn’t happen under the new administrator,” he added.
McCarthy’s hearing focused primarily on previous EPA administrator Lisa Jackson’s use of an alias email account, and the agency’s use of secret data sets to construct air quality regulations. Environmental issues took a backseat.
However, McGroarty said that Mississippi Republican Sen. Roger Wicker was able to specifically ask McCarthy about the EPA’s use of Section 404 permits to block the Pebble Mine in Bristol Bay, Alaska.
Pebble Mine has become a battleground over the limits of EPA power under the Clean Water Act with opponents of the mine urging the agency to use its authority under the law to preemptively veto the mine.
“The EPA has the authority under the Clean Water Act to stop Pebble Mine,” wrote Frances Beinecke, president of the Natural Resources Defense Council, adding that the EPA’s study “provides more than enough information to find with absolute certainty that large-scale mining in the Bristol Bay watershed would pose enormous, irreversible harm to the watershed’s natural resources — and the people and wildlife that depend on those resources.”
However, Pebble Mine supporters argue that such a move would be unprecedented as the EPA would be blocking a mining project before any actual plans for the mine had been submitted. If the agency is able to successfully block Pebble before any permits are obtained or plans are submitted, then other projects needing Section 404 permits could also be jeopardized.
In fact, it could have a “chilling effect” on $220 billion in investments needing Section 404 permits, according to the Brattle Group, an economic and financial consulting firm.
“And there’s over 200 billion dollars worth of economic activity that runs through that could be reached by the [Section 404] clean water provisions, not just in mining but in construction and other types of things,” McGroarty said. “If all of them were subjected to the possibility of a preemptive halt, that’s a huge amount of stranded capital, that’s a huge chewing affect in capital expenditures and it would have profound consequences in terms of the calculus that an investor group would be going through with a project.”
The Clean Water Act requires operations that dump “dredge or fill materials” into wetlands, rivers, lakes, or streams to obtain a Section 404 permit from the U.S. Army Corps of Engineers. The EPA has the authority to revoke this permit if there are “unacceptable adverse impacts on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.”
The EPA released its assessment of Pebble Mine last May and expressed concerns over the mine’s impact on salmon habitats and surrounding wetlands.
However, the agency did not evaluate any actual plans for the mine. Instead, it used a hypothetical mine to determine the environmental impacts.
“The EPA has been making a very expensive power play to veto a job-creating mining project before they’ve even received a permit application,” said Louisiana Republican Sen. David Vitter. “In an effort to kill the Pebble Mine project, the EPA recently spent hundreds of thousands of taxpayer-provided dollars sending 16 bureaucrats to Alaska to preemptively eliminate over 2,000 jobs projected for mine construction and 1,000 mining jobs.”
The EPA previously tried to use Section 404 to revoke a permit for a West Virginia coal mine four years after the permit had been issued by the Army Corps of Engineers. A federal court ruled against the EPA, saying its interpretation of the law is “illogical and unreasonable” and relies on “magical thinking.”
“It is further unreasonable to sow a lack of certainty into a system that was expressly intended to provide finality,” according to the decision, which is currently being reviewed by the federal D.C. Circuit Court of Appeals.
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