EPA Deals ‘Preemptive Veto’ to Pebble Mine

Feb 1, 2023 | Environmental, Government, Mining, News



A determination by the US Environmental Protection Agency (EPA) may be the final insurmountable obstacle in the development of the Pebble Mine in Southwest Alaska. Invoking a rarely used authority under Section 404(c) of the Clean Water Act, EPA is prohibiting the use of streams in the Bristol Bay watershed for mine waste disposal sites, even though the project would be located on state land subject to state regulations.

Unacceptable Adverse Effects

EPA’s Office of Water Assistant Administrator Radhika Fox made the final determination after more than a year of review of Pebble Limited Partnership’s mine plan from 2020. The agency concluded that mine development would have “unacceptable adverse effects” on salmon populations in the South Fork Koktuli River, North Fork Koktuli River, and Upper Talarik Creek watersheds, which drain into the Nushagak and Kvichak Rivers.

This conclusion is shared by Bristol Bay Native Corporation, which celebrated the news. Jason Metrokin, president and CEO, released in response: “EPA’s Final Determination is confirmation that Bristol Bay is a special place and Pebble mine represents a unique threat to our region, economy, and way of life. It is the product of more than a decade of rigorous scientific analysis and public comment, supported by a unified coalition of stakeholders from Alaska and beyond. Most important, the Final Determination provides the people of Bristol Bay with greater certainty that Pebble mine will never be built.”

Specifically, EPA determined that discharges of dredged or fill material would result in the permanent loss of approximately 8.5 miles of anadromous fish streams, 91 miles of additional tributaries, and 2,108 acres of wetlands. Discharges could also adversely affect approximately 29 miles of additional anadromous fish streams downstream of the mine site due.

Therefore, EPA is denying Pebble Limited Partnership the use of waters as disposal sites for the discharge of dredged or fill material.

The US Army Corps of Engineers had previously denied a federal permit two years ago for the proposed open-pit copper and gold mine about 17 miles from Lake Iliamna. Pebble Limited Partnership was appealing that denial.

In Pebble chairman and CEO John Shively’s written response, he called the EPA’s determination during a pending appeal “unlawful and unprecedented.” Although he did not commit to appealing the EPA action as well, Shively says a legal response is likely.

“This preemptive action against Pebble is not supported legally, technically, or environmentally,” said Shively’s statement.

State officials agree. Calling EPA’s decision “legally indefensible,” Attorney General Treg Taylor says, “The precedent set by this preemptive veto—if valid—should alarm all permit applicants, investors, and states who wish to retain their traditional land- and resource-management authority. If EPA can rely on undefined terms and subjective standards not based in science to short circuit the Corps’ appeals process and the state’s permitting process here—it can do it anywhere.”

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Even some in support of the decision, such as US Senator Lisa Murkowski, share concerns about how this ruling could affect resource development in general in the state. “As Senator Stevens once said, it is the ‘wrong mine in the wrong place,’ and does not deserve to move forward—for good reason. To be clear: I oppose Pebble,” she stated in a release about the news.

But she continued to say: “To be equally clear: I support responsible mining in Alaska, which is a national imperative. This determination must not serve as precedent to target any other project in our state and must be the only time EPA ever uses its veto authority under the Clean Water Act in Alaska. The Biden administration has now further sealed Pebble’s fate. But they have a responsibility to advance other mining projects in Alaska to help reduce our foreign dependence and prevent looming shortages. Going forward, I expect the President and his team to step up and meet that responsibility.”

The Alaska Department of Fish and Game, the Alaska Department of Environmental Conservation, and the Alaska Department of Natural Resources have not yet weighed in through the state permitting process or through state input as a landowner. Fish and Game Commissioner Doug Vincent-Lang says, “Alaska’s Title 16 permitting process would ensure protection of fish and fish habitat in the Bristol Bay area. But these statutory protections have been flouted by EPA, choked off before Alaska’s expert habitat and fish biologists had the opportunity to weigh in.”

State officials note that EPA reached the opposite conclusion from the Army Corps of Engineers, which found that the proposed mine plan “would not be expected to have a measurable effect on fish numbers or result in long-term changes to the health of the commercial fisheries in Bristol Bay.”

EPA has used its Section 404(c) veto authority just three times in thirty years, and this is the fourteenth time in the fifty-year history of the Clean Water Act. The agency adds that its determination for the Pebble Mine does not apply to any other resource development projects in Alaska.

An initial proposed determination in 2014 would have prohibited Pebble’s use of certain waters and watersheds, but that decision was withdrawn in 2017. Meanwhile, the Army Corps of Engineers rejected a permit application in 2020, finding the mine would likely have significant adverse effects on the Bristol Bay ecosystem. The Corps later rejected developers’ plan to mitigate the damage.

The EPA reinstated its Clean Water Act Section 404(c) determination after a federal court vacated the 2017 withdrawal.

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