In February, EPA sent the Pebble Partnership a letter that officially launched a review process under Section 404(c) of the federal Clean Water Act. The Pebble Partnership and state of Alaska had until April 29 to respond to the letter.

The Pebble Partnership says the EPA attempt to use a presumed authority under Section 404(c) to pre-emptively ban the permits required to develop Pebble is an unprecedented overreach based on a flawed assessment with a predetermined outcome that aims to thwart the limits of power the U.S. Congress bestowed upon the environmental agency.

“What is absolutely clear is that EPA’s intent to undertake pre-emptive action under Section 404(c) to restrict development of the Pebble Project goes well beyond its statutory authority as established by Congress, and would have the effect of undermining the legitimate regulatory authority of the State of Alaska and the U.S. Army Corps of Engineers,” Collier said in a statement announcing Pebble Partnership’s response to EPA.

“As EPA itself has admitted, it is an unprecedented action and it will have far-reaching negative consequences for investment and job creation in this country by turning the federal permitting process on its head,” he added.

Pebble Partnership contends that EPA’s attempt to use Section 404(c) to prevent the project from entering the permitting process marginalizes the congressionally mandated authorities granted the U.S. Army Corps of Engineers; bypasses a thorough and science-based review under the National Environmental Policy Act; and usurps Alaska’s role in the decision making process.

Setting the stage for likely legal action beyond the review process, the Pebble Partnership said EPA’s own documents indicate that the federal agency had a preconceived plan to ban Pebble that could result in an expansion of power for the environmental regulator.

The company notes an internal EPA worksheet that lists the pros and cons of a proactive 404(c) review of Pebble versus letting the project go into permitting. This 2010 discussion matrix lists “never been done before in the history of the CWA;” “immediate political backlash;” and “litigation” as downsides to vetoing permits. In the pro column of this 2010 discussion matrix, EPA staffers noted that proactively vetoing Pebble permits would “serve as a model of proactive watershed planning” in the United States.

“The actions EPA is contemplating today go well beyond Pebble. It is a precedent that will be leveraged by environmental activist groups and will have a chilling effect on future investment and job creation throughout the country,” Collier said. “Congress never intended to grant EPA the authority to undertake proactive watershed zoning over broad areas of state and private lands when it passed the Clean Water Act, yet that is exactly what is happening here.”

The Pebble Partnership also questions the accuracy and legitimacy of the Bristol Bay Assessment that EPA that serves as the basis of the agency’s determination to launch the 404(c) review.

“Despite three years of study, EPA has not quantified any impact of any of its speculative mine scenarios on any fishery in Bristol Bay. On that basis alone, EPA simply has not demonstrated that mineral development at Pebble will necessarily cause an unacceptable adverse effect on the region’s fisheries, and so does not have the regulatory authority to veto future development,” said Collier.

The company argues that an tangible mine plan submitted for NEPA review would outline an accurate layout of facilities, discharges and mitigation measures – providing a scientific basis for discussing the impacts of developing a mine at Pebble.

“We are calling on the EPA to suspend its Section 404(c) process, to wait for the submission of a proposed development plan for Pebble and to participate fully in the NEPA permitting process. Not only will this result in a more comprehensive, transparent, inclusive and definitive project review, EPA will retain its authority to veto the Pebble Project in future if it fails to demonstrate it will adequately protect regional fisheries,” said Collier.