Why BAAJA—A Bill About Affordability—Should Have Every Alaska Fishermen Paying Attention
On September 30, 2026, Senators Shelley Moore Capito along with Mike Lee, Sheldon Whitehouse, and Martin Heinrich introduced S. 5653, the Bipartisan American Affordability and Jobs Act of 2026, known as “BAAJA.”
Generally, BAAJA seeks to modify and expedite certain federal environmental review and permitting processes, primarily for energy-related projects. It would change a range of environmental laws, from the National Environmental Policy Act, Endangered Species Act, and National Historic Preservation Act to the Clean Water Act (CWA). This post focuses on one proposed change: BAAJA’s limit on the Environmental Protection Agency’s (EPA) authority under CWA Section 404(c) (33 U.S.C. § 1344(c)). The EPA has used this authority in the past to safeguard critical salmon spawning areas in Alaska from mining projects.
A CWA Primer
The CWA prohibits the discharge of pollutants from any point source (e.g., a discrete conveyance such as a pipe) to waters of the United States (WOTUS) without a permit. The CWA establishes two permitting programs that may be used to authorize certain WOTUS discharges. First, the Section 402 National Pollutant Discharge Elimination System (NPDES) permitting program. Second, the Section 404 permitting program for dredged or fill material. Under Section 404, the U.S. Army Corps of Engineers (the Corps) issues these permits. Large mining projects depend on these Section 404 permits to build tailings dams, roads, and other infrastructure in streams and wetlands.
Section 404 also provides a safeguard. Specifically, Section 404(c) allows the EPA to “veto” the Corps grant of a Section 404 permit. That is, the EPA can restrict, prohibit, deny, or withdraw a site—proposed or existing—for disposal of dredged or fill material if the discharge is having (or would have) unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. This veto authority serves as a federal “check” on the Corps. This EPA veto authority may be exercised “whenever”—that is, before a permit is applied for, while an application is pending, or after a permit has been issued. Whenever.
EPA has explained that using Section 404(c) before a permit application is filed helps developers and industry plan ahead. In the EPA’s words, it avoids “frustrating situations in which someone spends time and money developing a project for an inappropriate site and learns at an advanced stage that he must start over.”
Section 404(c) in Alaska
Throughout the CWA’s 50-year history, the EPA has only used its Section 404(c) veto authority 14 times. While the EPA rarely uses this power, it has done so in Alaska. For example, on January 30, 2023, the EPA used this veto authority to halt the Pebble Mine Project in Bristol Bay, which supports one of the world’s most productive wild sockeye salmon runs. That run sustains thousands of jobs, Alaska Native cultures that have depended on salmon for millennia, and the coastal communities whose economies rise and fall with each season. For many of our members, the Bristol Bay watershed is the foundation of a way of life. The EPA’s 2023 decision followed years of petitions from Bristol Bay Tribes and a broad coalition of regional stakeholders, including commercial fishermen, processors, and local businesses. The 2023 Pebble Mine defeat showcases how critical the EPA’s veto authority is.
What BAAJA Would Do
Now, back to BAAJA. BAAJA Section 1204(a)(1)(A) (pp. 123–124) seeks to amend the CWA Section 404(c)—the EPA’s veto authority. Section 1204(a)(1)(A) would limit the period of time during which EPA could issue a Section 404(c) “veto” of a Section 404 permit for the discharge of dredged or fill material into waters of the United States. Currently, as mentioned above, the EPA Administrator can veto “whenever.”
BAAJA would change that. BAAJA would restrict the EPA’s veto power to the following time period: the date the applicant submits a Section 404 application to the date on which the Corps issues the Section 404 permit. Under this change, the EPA would no longer be able to use its veto authority after the Corps issued a permit. That is, once the Corps has issued a permit, the EPA’s ability to challenge the project would be prohibited.
As currently written, CWA Section 404 explicitly allows the EPA to exercise its veto authority “whenever,” which does not constrain that authority to a specific timeframe. BAAJA would significantly shorten the window in which the EPA can use it, and that could weaken the check designed to protect fisheries and water supplies when a permit would put them at risk. That is why the word “whenever” matters. A Section 404 permit for a large mine can last decades, and the full risks to fisheries and water supplies don’t always become clear on the day the Corps signs off. New science, changing conditions, and a fuller picture of downstream effects can all emerge afterward. BAAJA would also close off early action, like the Bristol Bay review that began years before Pebble filed its application. While BAAJA seeks to expedite permitting, Section 404(c) should be preserved so the EPA can still say no when a permit would put a fishery at risk.
What you can do
AMCC urges Alaskans to read BAAJA Section 1204(a)(1)(A) and to contact Senators Lisa Murkowski and Dan Sullivan and Representative Nick Begich, asking them to preserve the EPA’s Section 404(c) veto safeguard as BAAJA moves forward. Tell them how critical the exercise of the EPA’s veto authority is, what it meant to Bristol Bay, and why that authority needs to remain in place to protect important areas from projects that could harm ecosystems and Alaskan fishing economies.
Photo courtesy of Chase Berenson
