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U.S. Army Corps of Engineers Announces Pebble Mine Permit Appeal Decision

, the U.S. Army Corps of Engineers (USACE) Pacific Ocean Division (POD) announced its decision to remand the Alaska District’s November 25, 2020 permit application denial of Pebble Limited Partnership’s (PLP) proposed mining operations in the Bristol Bay watershed in southwestern Alaska. The POD Division Engineer, Brig. Gen. Kirk Gibbs, found specific portions of PLP’s appeal to have merit.

In January 2021, PLP challenged the Alaska District’s November 2020 permit application denial through USACE’s 33 C.F.R. §331 – Regulatory Program Administrative Appeal Process. The appeal process is an administrative and stand-alone process, which allows an affected party (PLP) to pursue an administrative appeal of certain USACE decisions with which they disagree.

“My decision to remand the permit application denial back to the Alaska District is not a permit authorization,” said Gibbs. “The District has been asked to re-evaluate specific issues in the administrative record to ensure that the decision is well-supported.”

The administrative appeal was focused solely on review of the administrative record for the denied permit application. The administrative record includes all documents and materials directly or indirectly considered by the decision-maker, including content that is pertinent to the merits of the decision, as well as those that are relevant to the decision-making process.

As a result of the Division Engineer’s remand decision, the Alaska District must review the appeal decision in light of the EPA’s Final Determination as the District considers its next steps. On January 30, 2023, the EPA issued its Final Determination under section 404(c) of the Clean Water Act, limiting the use of certain waters in the Bristol Bay watershed as disposal sites for certain discharges of dredged or fill material associated with development of a mine at the Pebble Deposit.

The remand decision concludes the USACE administrative appeal process, which is independent of the EPA’s Final Determination.

A copy of the decision document and further information about the USACE regulatory program and appeal process are available at https://www.pod.usace.army.mil/Missions/Regulatory/Appeals/.

Members of the media or the public may submit inquiries to USACE’s Pacific Ocean Division’s Public Affairs Office via pod-pao@usace.army.mil.

Responsibilities within the Clean Water Act:

USACE and the EPA share responsibilities for implementing Section 404 of the Clean Water Act.

Under Section 404(a) of the Clean Water Act, a USACE permit is required before dredged or fill material may be discharged into waters of the United States, unless the activity is exempt from Section 404 regulations (e.g., certain farming and forestry activities).

The Clean Water Act Section 404(c) provides the EPA with independent authority, separate and apart from the USACE Clean Water Act Section 404 permitting process, to review and evaluate potential discharges of dredged or fill material into waters of the United States. Section 404(c) of the Clean Water Act authorizes EPA to (1) prohibit or withdraw the specification of any defined area as a disposal site, and (2) deny, restrict, or withdraw the use of any defined area for specification as a disposal site, whenever it determines, after notice and opportunity for public hearings, that the discharge of dredged or fill material into the 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.

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