Environmental Protection Agency request may end plans for Pebble Mine project

ANCHORAGE, Alaska (KTUU) - The regional administrator of the Environmental Protection Agency has taken a major step in preventing the development of mines in the Bristol Bay watershed today, issuing a recommended determination that may put a stop to the Pebble Partnership’s plans for the region.

The recommendation follows a review of the substantial number of scientific evaluations, public comments, and technical information that determined discharge from mining enterprises is likely to damage the salmon fisheries of the South Fork and North Fork Koktuli rivers and the Upper Talarik Creek, all located within the Bristol Bay watershed.

EPA Region 10 Regional Administrator Casey Sixkiller issued the recommended determination which proposes the prohibition of “certain waters of the United States in the South Fork Koktuli River and North Fork Koktuli River watersheds as disposal sites for the discharge of dredged or fill material for the construction and routine operation of the mine plan described in Pebble Limited Partnership’s June 8, 2020 CWA Section 404 Permit application, as well as future proposals to construct and operate a mine to develop the Pebble Deposit that would result in the same or greater levels of loss or change to aquatic resources.”

In addition, the recommended suggests disallowing the same waterways to be as disposal sites for mine discharge, tailings, or fill material “associated with future proposals to develop the Pebble Deposit that would result in adverse effects similar or greater in nature and magnitude to those associated with the 2020 Mine Plan.”

According to the EPA’s website, Section 404(c) of the Clean Water Act provides the agency with the option to “restrict, prohibit, deny, or withdraw the use of an area as a disposal site for dredged or fill material if the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas”.

Today’s move is the penultimate one in the agency’s long process of formalizing protections for the sensitive area, which is relied upon by many in the Bristol Bay region for use in subsistence fishing and hunting.

Pebble Limited Partnership CEO John Shively opposes the preemptive shutdown of the firm’s plans.

“We still firmly believe that the proposed determination should have been withdrawn as it is based on indefensible legal and non-scientific assumptions,” Shively said in a statement. “The process and the decision have been political from the start, as evidenced by White House Climate Change Advisor Gina McCarthy’s stating in November of 2021 that the administration would shut down the project once and for all while praising the action with a ‘hallelujah.’”

Shively also claims the EPA is not cognizant of the entire situation faced by resource extraction firms, citing a changing industry and concerns about the future production of energy.

“Those who think we can build a green energy economy in this country and stop mining at the same time are living in a fantasy world,” Shively said. “I suspect the Chinese are laughing at the U.S. for making it so easy for China to become the ‘OPEC’ of producing minerals critical for the world’s economy.

“We have witnessed the situation unfolding in Europe which is the direct result of their being dependent on an unfriendly country for essential resources, and yet, for no good reason, the U.S. is heading down a similar path for these critical minerals.”

The project in question is the proposed development of the Pebble Deposit into a massive open-pit mine extracting copper, gold and porphyry on state land some 100 air miles from Bristol Bay. The project has a projected operating life of just 20 years and its facilities would occupy an area of over 5 square miles that would include the largest open-pit mine in North America. According to Shively, copper has been identified as a mineral with the potential to be useful to future infrastructure as the country explores options for renewable energy.

One permit for the mine was already denied in November 2020, partially because the proposed discharge plan was not in line with Clean Water Act guidelines. In September of the following year, the EPA requested that Clean Water Act protections be used to protect the waters of Bristol Bay by halting the development of the Pebble Deposit.

Pebble has proposed segregated storage for tailings, including the removal of pyritic tailings, a byproduct of copper extraction that contains large amounts of sulfides including pyrite that may alter the chemical balance of soils. It also promises that no tailings facility will remain after mining operations have ceased, but it may not be enough to satisfy regulators.

“EPA Region 10′s action represents the third step in EPA’s four-step Clean Water Act Section 404(c) review process,” Sixkiller said. “If affirmed by EPA’s Office of Water, this action would help protect salmon fishery areas that support world-class commercial and recreational fisheries, and that have sustained Alaska Native communities for thousands of years, supporting a subsistence-based way of life for one of the last intact wild salmon-based cultures in the world.”

Before the recommended determination is approved — and before the agency can issue a final determination — the EPA will conduct a review of the information and conduct outreach with stakeholders and affected parties. Additional information may be gathered by the Army Corps of Engineers, the state, and the applicant “about their intent to take corrective action to prevent unacceptable adverse effects, before issuing a Final Determination affirming, modifying, or rescinding the Recommended Determination.”

According to the United Tribes of Bristol Bay, the EPA’s action echoes the wishes expressed during public comment that largely oppose the incursion of mines in the sensitive watershed.

“We welcome the Environmental Protection Agency advancing the process for protecting Bristol Bay,” Executive Director for United Tribes of Bristol Bay Alannah Hurley said in a statement. “After twenty years of Pebble hanging over our heads, the Biden Administration has the opportunity to follow through on its commitments by finalizing comprehensive, durable protections for our region as soon as possible. We look forward to reviewing the EPA’s Recommended Determination in greater detail to ensure it achieves the goal of protecting our people and region from the threat of the Pebble Mine.”

Tribes in Bristol Bay initially requested protections for the region more than two decades ago and began seeking protections under the Clean Water Act in 2010. Following a three-year study of the Bristol Bay fisheries and watershed, the EPA began considering proposed protections in 2014 and the Clean Water Act was re-initiated in 2021. Despite being a long process, it’s one that is welcomed by stakeholders.

“The current EPA process is the product of decades of research, analysis, data gathering, and public comment and should allow for a targeted approach that, when finalized, will help safeguard Bristol Bay’s economy and way of life for future generations,” Bristol Bay Native Corporation President and CEO Jason Metrokin said in a statement.

“BBNC joins many across the region and across Alaska in calling for EPA to issue a Final Determination as quickly as possible to provide certainty as we head towards what should be another historic fishing season.”

Tim Bristol, director of salmon action group SalmonState, released a statement saying protections of the area are welcome because of what it means for those in the area, both human and piscine.

“We are both excited and relieved to see the Environmental Protection Agency follow the science and listen to the public by moving forward with Clean Water Act protections for Bristol Bay,” Bristol said. “After another record-breaking fishing season, this news is welcome to all those who depend on Bristol Bay and its fisheries. But there is no time to waste; the Biden administration must finalize 404(c) Clean Water Act protections for the world’s most productive and profitable wild salmon fishery as soon as possible.”

In addition to subsistence and recreational use of the Bristol Bay watershed, the ability of commercial fishing outfits to continue operating in the regions is also of great concern to those considering the development of mines in the watershed, according to Katherine Carscallen, director of Commercial Fishermen for Bristol Bay.

“This summer’s record-breaking salmon return was thanks in large part to Bristol Bay’s pristine waters and healthy habitat,” Carscallen said in a statement. “Our fishermen were able to deliver 59 million wild sockeye to the market — something that isn’t happening anywhere else in the world. EPA’s release of their Recommended Determination today is an important step towards finalizing urgently needed protections for the region by the end of the year.”

“EPA’s action is an essential step forward for Bristol Bay Tribes and communities, joined overwhelmingly by Alaskans, fishermen, conservation groups, scientists, businesses, and people the world over,” Western Director and Senior Attorney for National Resources Defense Council Joel Reynolds said in a statement. “Together, we have fought for more than a decade to stop the Pebble Mine and defend Bristol Bay’s extraordinary ecosystem. With EPA’s announcement today, lasting protection for Bristol Bay is finally within reach. We urge EPA now to finish the job — for good.”

For many Alaskans, the appeal of operations such as the one proposed by Pebble Partnership lies in the economic benefit of having a large and reliable employer in the region. But even the prospect of up to 1,000 isn’t important enough for many in the area to disregard the environmental impact, nor the road to Cook Inlet that would need to be constructed.

“Perhaps the most egregious aspect of this entire process is the EPA’s blatant dismissal of, and complete lack of consideration for, the significant economic benefits this project could have for the region and for the state without explanation or justification,” Shively said. “The EPA gives short shrift to what hundreds, if not thousands, of jobs could mean for the communities around Iliamna Lake.”

“I know from personal experience what jobs mean for Alaska’s smaller, rural communities and for the Alaska Natives who live there. The Final EIS and subsequent Economic Impact Assessment clearly demonstrate the dramatic impact responsible Pebble development could have for these communities.”

Supporting Pebble in this matter is the office of Gov. Mike Dunleavy, who just two months ago joined representatives from 13 other states in their opposition to the veto powers of 404(C).

“The State of Alaska has the duty, under our constitution, to develop its resources to the maximum in order to provide for itself and its people, so it’s important that any and all opportunities be explored in furtherance of this idea,” Dunleavy said in a statement. “The recent decision on the Pebble mine, which is solely located on State land, is the wrong decision. The State of Alaska does resource development better than any other place on the planet and I challenge others to prove that wrong. Our opportunities to show the world a better way to develop our resources should not be unfairly pre-empted by the Biden administration under a solely political act. This sets a very troubling precedent for the State and the country. If this goes unchallenged, this issue will become precedent-setting, potentially for other states as well.”

The governor’s office also states that the move is premature.

“Project plans are still working through the established permitting process, which the Army Corps of Engineers oversee. At this juncture, Alaska’s State agencies—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, the State’s 401 certification process, or through State input as a landowner,” a press release from the office read.

“This is an incredible power for a federal agency — staffed by unelected officials, unaccountable to Alaskans — to have,” Commissioner of the Alaska Department of Environmental Conservation Jason Brune said.

The EPA now has 60 days to evaluate the recommendation before issuing a final determination that modifies, affirms or rescinds today’s filing. Regulations do not require public notice or comment, however, the EPA has made a copy of the Recommended Determination available on the agency’s Bristol Bay website.

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