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State Pollution Discharge Permitting Upheld in Ninth Circuit


Anchorage Alaska – In what Governor Parnell called “an important case for Alaska,” the U.S. Ninth Circuit Court of Appeals yesterday upheld the transfer of the permitting program for discharges under the federal Clean Water Act from the U.S. Environmental Protection Agency (EPA) to the Alaska Department of Environmental Conservation (DEC).

“We need to ensure that Alaska has primacy in decisions regarding the use and development of natural resources in our state,” said Governor Parnell.  “This opinion helps to achieve this.  We are the people most affected by what development occurs and how it occurs in our state.  Making important resource decisions in Alaska ensures better public access to government decision-makers and more accountability.  It also ensures that the people who make permitting decisions have first-hand knowledge of the projects and resources they regulate.”

The EPA-to-DEC permitting transfer had been challenged in a lawsuit filed by several environmental groups.  The State of Alaska intervened on the side of the federal government to support the state’s right to manage the program.  The Ninth Circuit Court affirmed that the state had met all of the criteria required by federal law to assume responsibility for the program and dismissed the plaintiffs’ appeal.  As a result, DEC will continue phasing in its authority under the National Pollutant Discharge Elimination System (NPDES) program, including the permitting of regulated discharges from mines, for which DEC assumed authority last week.

“This victory shows why it is important for the state to intervene in litigation that affects Alaska’s interests,” said Attorney General Dan Sullivan.  “Alaska can now remain among 46 states that exercise primary authority over the issuance and enforcement of NPDES permits.”

The EPA approved the state’s application in 2008, triggering a four-phase transfer of the permitting program through 2011.

Alaska DEC Commissioner Larry Hartig said he also is pleased with the Ninth Circuit’s decision.  “DEC appreciates the important responsibility we have to the public in administering this program.  We look forward to continuing to build an effective and efficient program that rests on good science and includes an open public process.”

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