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WASHINGTON – Today, EPA took an important step in seeking to reinitiate the process of making a Clean Water Act (CWA) Section 404(c) determination to protect certain waters in Bristol Bay, Alaska. If such a determination is finalized, it would protect waters over the long term that are essential to commercial, subsistence, and recreational fisheries and other activities that support Alaska Natives and communities in the state.
“The Bristol Bay Watershed is an Alaskan treasure that underscores the critical value of clean water in America,” said EPA Administrator Michael S. Regan. “Today’s announcement reinforces once again EPA’s commitment to making science-based decisions to protect our natural environment. What’s at stake is preventing pollution that would disproportionately impact Alaska Natives, and protecting a sustainable future for the most productive salmon fishery in North America.”
Under the previous administration, EPA issued a July 2019 notice withdrawing its 2014 Proposed Determination issued under CWA Section 404(c). This action terminated the review process for Bristol Bay.
A recent Ninth Circuit court decision found that EPA can withdraw a Proposed Determination “only if the discharge of materials would be unlikely to have an unacceptable adverse effect.” The agency believes the 2019 withdrawal notice did not meet the Ninth Circuit’s standard. On remand from the Ninth Circuit, the Alaska federal district court recently directed EPA to file a proposal for additional court proceedings by September 10.
Today, the U.S. Department of Justice, in a filing in the district court, is announcing EPA’s intent to request that the 2019 withdrawal notice be remanded and vacated. If the court grants the motion, remand and vacatur would automatically reinitiate EPA’s 404(c) review process and the agency would announce a schedule for resuming a process to protect certain waters in the Bristol Bay watershed—including opportunities for public input.
Bristol Bay supports commercial, subsistence, and recreational fisheries that are worth hundreds of millions of dollars each year and create thousands of jobs. Bristol Bay’s fishery resources have supported a subsistence-based way of life for Alaska Natives for over 4,000 years.
The Bristol Bay watershed is an area of exceptional ecological value with salmon fisheries unrivaled anywhere in North America. The region’s streams, wetlands, lakes and ponds provide essential habitat that support all five species of Pacific salmon found in North America: coho, Chinook, sockeye, chum, and pink. The salmon populations are critical to the health of the entire ecosystem, which is home to more than 20 fish species, 190 bird species, and more than 40 terrestrial mammal species, including bears, moose, and caribou.
The Clean Water Act generally requires a Section 404 permit from the U.S. Army Corps of Engineers to authorize a discharge of dredged or fill material into certain streams, wetlands, lakes and ponds. Section 404 directs EPA to develop the environmental criteria used to make permit decisions.
The U.S. Army Corps of Engineers authorizes thousands of Section 404 permits every year, and EPA works with the Corps and developers to resolve environmental concerns so projects can move forward. However, the Clean Water Act, in Section 404(c), also authorizes EPA to prohibit or restrict fill activities if EPA determines a discharge would have an unacceptable adverse effect on certain resources.
EPA has used its Section 404(c) authority sparingly, issuing final determinations only 13 times in the CWA’s 50-year history. The agency’s use of the authority has typically involved major projects with significant impacts on some of America’s most ecologically valuable waters.
For more information visit: https://www.epa.gov/bristolbay.
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