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More Thoughts Fond Du Lac

In yesterday's blogpost, I discussed the new case out of the District of Minnesota addressing challenges to proposed 402 and 404 permits for a new mine. The case, Fond Du Lac Band of the Lake Superior Chippewa v. EPA, 2021 WL 603754 (D. Mn. 2021), is interesting on several levels, especially its holding on EPA's requirement to do a § 401(a)(2) "may affect" determination.


I think the judge was reaching a bit in arriving at the conclusion that EPA has a nondiscretionary duty perform a "may affect" analysis for all permits' possible effects on downstream state water quality. If this holding stands, EPA will have to engage in a review of possible downstream water quality impacts for thousands of new permits. Because this could result is a huge increase in EPA's workload, I suspect EPA will appeal it. It will be interesting to see what the Seventh Circuit does with this.


It is also interesting that this issue has come up so seldom in the past. As I recall, there have been fewer than 10 "may affect" determinations by EPA since 1972 (all discretionary). There have been more 404(c) vetoes, and those are pretty rare. If this holding sticks, it will be a game changer. Once EPA goes into mandatory "may effect" determination mode, it starts a 90-day clock for the review followed by a possible hearing, which means that all permits, including 404 permits will be slowed by at least three months, and possibly longer. I doubt the Corps will be excited about that.


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