Title: Proposal To Withdraw Proposed Determination To Restrict the Use of an Area as a Disposal Site; Pebble Deposit Area, Southwest Alaska
Docket ID: EPA-R10-OW-2017-0369
Agency: EPA - Region 10 Office
Comments Close: October 17, 2017
Summary Index (select section title to go to section):
- Notice Details
- Context: (I) Bristol Bay Watershed and the Pebble Deposit, (II) 2014 Proposed Determination and Section 404(c) of the Clean Water Act, (III) Lawsuit and Settlement.
- Debate: (I) Against Withdrawal, (II) In Favor of Withdrawal
‘The Environmental Protection Agency (EPA) Administrator and Region 10 Regional Administrator are requesting public comment on this proposal to withdraw the EPA Region 10 July 2014 Proposed Determination. The 2014 Determination would have restricted the use of certain waters in the South Fork Koktuli River, North Fork Koktuli River, and Upper Talarik Creek watersheds in southwest Alaska as disposal sites for dredged or fill material associated with mining the Pebble deposit, a copper-, gold-, and molybdenum-bearing ore body. The EPA agreed to initiate this withdrawal process as part of a May 11, 2017 settlement agreement with the Pebble Limited Partnership, whose subsidiaries own the mineral claims to the Pebble deposit. The EPA is accepting comments from the public on the rationale for the proposed withdrawal.’
‘The proposal reflects the Administrator's decision to provide the Pebble Limited Partnership with additional time to submit a permit application to the Army Corps and potentially allow the Army Corps permitting process to initiate without having an open and unresolved section 404(c) review.’ The Pebble Limited Partnership needs a permit from the Army Corps of engineers to discharge dredged or fill material into US waters. Although the Pebble Limited Partnership can submit a permit application to the Army Corps while a section 404(c) review is open, the Army Corps cannot issue a final decision on the permit. The 2014 Proposed Determination was one step in an open 404(c) review process.
‘A withdrawal of the Proposed Determination would remove any uncertainty, real or perceived, about [Pebble Limited Partnership]'s ability to submit a permit application and have that permit application reviewed. Because the Agency retains the right under the settlement agreement to ultimately exercise the full extent of its discretion under section 404(c), including the discretion to act prior to any potential Army Corps authorization of discharge of dredged or fill material associated with mining the Pebble deposit, the Agency believes that withdrawing the Proposed Determination now, while allowing the factual record regarding any forthcoming permit application to develop, is appropriate at this time for this particular matter.’
The EPA is specifically seeking public comment on:
Whether to withdraw the July 2014 Proposed Determination at this time for the reasons stated above; and
If a final withdrawal decision is made following this comment period, whether the Administrator should review and reconsider the withdrawal decision.
Bristol Bay Watershed & the Pebble Deposit
Bristol Bay is where the Bering Sea meets the expansive floodplain of Southwest Alaska. The complex hydrography of the region, with its numerous rivers, streams, and lakes, provides healthy habitat for wildlife such as salmon, bears, moose, and waterfowl. Every year, up to 40 million sockeye salmon return to this watershed to reproduce, and their migration supports the livelihoods of human communities in Alaska. The Yupik, Alutiiq, and Dena’ina peoples have called Bristol Bay home since time immemorial; for these groups, subsistence fishing, hunting, and gathering are important livelihood and cultural activities. The contributions of the Bristol Bay fishery to the vibrancy of Southwest Alaska was formally recognized in 1972, when Senator Jay Hammond and the Alaska Legislature established the Bristol Bay Fisheries Reserve, in order to protect the area from the potentially harmful effects of oil and gas development.
In addition to its ecological and cultural wealth, Bristol Bay also contains substantial mineral deposits; the Pebble deposit is among them. Approximately 90 million years ago (around the time T. rex was alive!), as the Pacific tectonic plate slid beneath the North American plate, magma containing dissolved copper, gold, molybdenum, and silver, deposited these metals into the Pebble region. In the late 1980’s, the mining company Teck conducted explorations in the area and discovered these mineral deposits. The deposits are very large but they are considered “low-grade”, meaning that the desired copper, gold, and molybdenum minerals are “sprinkled throughout the rock like fine grains of sand” ("The Deposit," Pebble Partnership).
At present, the land on which the Pebble Deposit is located is owned by the State of Alaska. However, all mineral rights to the Pebble deposit are held by Northern Dynasty Minerals Ltd, a mining company based in Vancouver, British Columbia. Northern Dynasty’s principal asset is the Pebble Mine Project ("Company Overview," Northern Dynasty Minerals Ltd.).
Original Proposed Determination & Section 404(c) of the Clean Water Act
In 2014, the EPA Office for the Pacific Northwest (Region 10) published a Notice of Proposed Determination, filed under the Clean Water Act. The Proposed Determination was to “restrict the use of certain waters in the South Fork Koktuli River, North Fork Koktuli River, and Upper Talarik Creek watersheds (located within the larger Bristol Bay watershed) as disposal sites for dredged or fill material associated with mining the Pebble deposit.” The Notice of Proposed Determination stated that the discharge of dredge or fill material into the nearby network of streams, lakes and wetlands “would result in complete loss of fish habitat due to elimination, fragmentation, and dewatering of streams, wetlands, and other aquatic resources. In addition, water withdrawal and capture, storage, treatment, and release of wastewater associated with the mine would significantly impair the fish habitat functions of other streams, wetlands, and aquatic resources.”
The EPA determined that the sum of these impacts could result in “unacceptable adverse effects on fishery areas (including spawning and breeding areas),” and it was not “demonstrated to the satisfaction of EPA Region 10 that no unacceptable adverse effect(s) will occur.” Section 404(c) of the Clean Water Act authorizes the EPA to “prohibit, restrict, or deny the use of any defined area in waters of the United States for specification as a disposal site” when “unacceptable adverse effects” are expected on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. While a section 404(c) review process is ongoing, the Army Corps of engineers can not issue a final decision on a permit to allow dredged or fill material to be discharged into US waters.
A two-month public comment period was held from July 21-Sept 19 2014, and received over 670,000 written comments. Over 830 community members attended 7 hearings in southwest Alaska during the week of August 11, 2014, delivering over 300 oral statements.
Pebble Limited Partnership v. EPA Lawsuit
In response to the Proposed Determination, the Pebble Limited Partnership filed litigation against the EPA. The case challenged the EPA’s “interpretation that it has the statutory authority to conduct a review... in order to veto mining-related activities on State land currently open to mining, even though no permit applications for mine development have been filed” (Geraghty & Heese, Pebble Limited Partnership v. United States Environmental Protection Agency).
On May 11, 2017 the EPA entered into a settlement agreement with Pebble Limited Partnership, which ended litigation. The settlement agreement allows Pebble Limited Partnership to apply for a Clean Water Act dredge and fill permit from U.S. Army Corps of Engineers before the EPA can specify restrictions to the discharge of dredged and fill material associated with mining. Specifically, the EPA must wait 48 months from the settlement date - or until the U.S. Army Corps of Engineers issues its final environmental impact statement -before it issues a determination. As a result, EPA has agreed to initiate withdrawing the current Proposed Determination within 60 days of the settlement. Other terms of the settlement include the Pebble Limited Partnership dismissing all lawsuits against the EPA, the Pebble Limited Partnership agreeing to withdraw and not file any more Freedom of Information Act requests or lawsuits regarding Bristol Bay for a specified period, and that the EPA may use the scientific Bristol Bay Watershed Assessment without any limitation.
Against Withdrawal (pro-Determination)
Within a few hours after the EPA announced its plans to withdraw its 2014 Proposed Determination, the National Resources Defense Council put out a statement that reflected the frustration not only of many environmental groups and NGOs, but also of Bristol Bay residents, Native Alaskan communities, and commercial fishermen: “First, the facts have not changed… Second, the science has not changed… Most important, the opposition has not changed.” So what are the facts, the science, and the opposition?
To quote the EPA’s own publication of the 2014 Proposed Determination in the Federal Register, “After three years of study, two rounds of public comment, and independent, external peer review,” the EPA determined that “the extraction, storage, treatment, and transportation activities associated with” Pebble Mine operations “would pose significant risks to the unparalleled ecosystem that produces one of the greatest wild salmon fisheries left in the world. In simple terms, the infrastructure necessary to mine the Pebble deposit jeopardizes the long-term health and sustainability of the Bristol Bay ecosystem.” Even with under smallest-scale mining scenario, this includes total habitat losses of “more than 1,200 acres of wetlands, lakes and ponds,” the equivalent of “more than 350 football fields.” The size of the mining operations is expected to be so expansive because (1) low-grade mineral deposits like the Pebble deposit require the processing of large quantities of raw material, and (2) none of the necessary infrastructure currently exists to contain hazardous mining waste, such as a power plant, deep-water harbor, roads, pipelines, and multiple tailings dams.
Under Section 404(c) of the Clean Water Act, the EPA is authorized to prohibit or otherwise restrict the use of a any waters as a disposal site after it determines that the discharge of dredged or fill material will have an “unacceptable adverse effect” on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. The EPA asserts that it has used this authority “judiciously and sparingly,” having completed only 13 Section 404(c) actions in the 42 years since the Clean Water Act was established. The most recent prior use of Section 404(c) actions was in 2011, to withdraw the use of certain streams and wetlands within West Virginia, "as a disposal site for dredged or fill material in connection with construction, operation, and reclamation" of a surface mining operation (Final Determination of the Assistant Administrator for Water Pursuant to Section 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, WV).
The long-term health and sustainability of the Bristol Bay ecosystem is critical enough for the EPA to use its Section 404(c) authority because the ecosystem provides “unparalleled” ecological, social and economic value. The watershed boasts “salmon diversity and productivity unrivaled anywhere in North America,” which contributes to thriving commercial and sport fisheries, Alaska Native communities, and tourism. The sockeye and Chinook salmon runs are some of the world’s largest and they are also entirely wild, making Bristol Bay “remarkable as one of the last places on Earth with such bountiful and sustainable harvests of wild salmon.” “The Bristol Bay watershed's ecological resources generated nearly $480 million in direct economic expenditures and sales and provided employment for over 14,000 full- and part-time workers in 2009” The commercial salmon fishery comprises 62.5% of this direct economic expenditures and sales, and 78.6% of the employment. The watershed supports “a more than 4,000-year-old subsistence-based way of life for Alaska Natives.” In a letter sent by tribal government representatives of the EPA’s Regional Tribal Operations Committee representing the Bristol Bay area, the representatives cite how salmon support “ a traditional way of life that has endured for millennia and thrives today. EPA has a trust responsibility to ensure that these communities are protected.”
Renewed opposition to the project includes the Sustaining Bristol Bay Fisheries (SBBF) project, an initiative by the United Tribes of Bristol Bay to collaborate directly with the commercial fishing industry (Lill & Dillingham, Alaska Public Media), and a citizens initiative for the 2018 ballot that would add protections for salmon habitat in the face of big projects like the proposed Pebble mine (Herz, N. Alaska Dispatch News).
In Favor of Withdrawal (anti-Determination)
The EPA’s issuance of a Proposed Determination in 2014 was described as “extraordinary conditions” by the Pebble Limited Partnership CEO because it could be described as outside of the “normal permitting and review process.” The EPA placed restrictions on mine development before a permit had been sought for the project; the Pebble Limited Partnership was not even given the opportunity “to present a detailed mine plan, file for permits, or initiate the state and federal permitting process” (“EPA Period for Public Comment Open Until Sept.19,” The Pebble Partnership).
The Pebble Limited Partnership CEO also cited the importance of the mining project to the economic development of Alaskan communities, as “this project represents the potential for billions of dollars of investment, thousands of long-term, high-wage jobs and the potential for significant economic activity while at the same time providing revenue for local, state, and federal governments.” (“Pebble, EPA Reach Resolution in Long Standing Dispute,” The Pebble Partnership).
These economic benefits were quantified in a study completed by IHS Global Insight, an economic analysis and forecasting firm, which used ongoing engineering plans to serve as a proxy for a definitive development plan. The the construction phase of the project (years 1-5) would generate 16,175 jobs annually and the initial production phase (years 5-29) would generate 15,000 jobs annually; although only 4,725 and 2,890 employment positions, respectively, would be held by Alaskans. The remaining ~11,000 positions would be created in the lower 48 states. The mine would also generate approximately $726.7 million to $1.7 billion in total annual revenue from copper production. This would increase total US copper production by 20% above the 2011 production level, contributing to the Trump administration’s goal of advancing national resource extraction in order to decrease United States’ reliance on foreign imports.
In response to concerns raised by Alaskan communities, the CEO asserts that the Pebble Limited Partnership is introducing “several new initiatives in the coming year that will more clearly define how the project will benefit residents of Bristol Bay and Alaska. Our project will be significantly smaller with demonstrable environmental protections. Chief among these is protecting the important salmon resource in Bristol Bay.”
EPA - Environmental Protection Agency
PLP - Pebble Limited Partnership. The Pebble Limited Partnership’s subsidiaries own the mineral claims to the Pebble mineral deposit. The Partnership is owned by Northern Dynasty Minerals Limited.
EPA Region 10 - The EPA has 10 regional offices across the country, each of which is responsible for several states, territories and/or special environmental programs. Region 10 covers the states of Idaho, Oregon, Washington, and Alask
Section 404(c) - A section of the Clean Water Act which authorizes the EPA to “prohibit, restrict, or deny the use of any defined area in waters of the United States for specification as a disposal site” when “unacceptable adverse effects” are expected to occur “on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas” ("Clean Water Act Section 404(c)," Environmental Protection Agency)
Section 404 permit - “Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged or fill material into the waters of the United States, including wetlands. Activities in waters of the United States regulated under this program include fill for development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports) and mining projects. Section 404 requires a permit before dredged or fill material may be discharged into waters of the United States” ("Section 404 Permit Program," EPA).
Environmental Protection Agency. “Clean Water Act Section 404(c): Restriction of disposal sites.” Accessed July 23, 2017 at https://www.epa.gov/cwa-404/clean-water-act-section-404c-restriction-disposal-sites
Environmental Protection Agency. “Section 404 Permit Program.” Accessed July 23, 2017 at https://www.epa.gov/cwa-404/section-404-permit-program
Environmental Protection Agency. (2011, Jan. 19). "Final Determination of the Assistant Administrator for Water Pursuant to Section 404(c) of the Clean Water Act Concerning the Spruce No. 1 Mine, Logan County, WV." Published in The Federal Register 76(12):3126-3128.
Geraghty, M.C. & Heese, R.H. Motion to Intervene in Pebble Limited Partnership v. United States Environmental Protection Agency (District Court for the District of Alaska).
Herz, N. (2017, May 26). Habitat Protection would turn tables on miners. Alaska Dispatch News. Accessed from The Bristol Bay Times on July 23, 2017 at http://www.thebristolbaytimes.com/article/1721habitat_protection_would_turn_tables_on
IHS Global Insight. (May 2013). The Economic and Employment Contributions of a Conceptual Pebble Mine to the Alaska and United States Economies. Prepared for The Pebble Limited Partnership. Access on July 23, 2017 at https://corporate.pebblepartnership.com/files/documents/study.pdf
Letter from the EPA Region 10 Regional Tribal Operations Committee to Administrator Gina McCarthy. Accessed on July 23, 2017 at https://www.regulations.gov/document?D=EPA-R10-OW-2014-0505-1951
Lill, A & Dillingham, K. (2017, June 21). Advocates opposed to mining in Bristol Bay region ramp up summer outreach. Alaska Public Media. Accessed July 23, 2017 at http://www.alaskapublic.org/2017/06/21/advocates-opposed-to-mining-in-bristol-bay-region-ramp-up-summer-outreach/
Northern Dynasty Minerals Ltd. “Company Overview.” Accessed July 23, 2017 at http://www.northerndynastyminerals.com/ndm/CompanyOverview.asp
The Pebble Partnership. “Geography: The Deposit.” Accessed July 23, 2017 at https://www.pebblepartnership.com/geology.html#section-deposit
The Pebble Partnership. (August 22, 2014). “EPA Period for Public Comment Open until Sept. 19.” Accessed on July 23, 2017 at https://corporate.pebblepartnership.com/news-article.php?s=epa-period-for-public-comment-open-until-sept-19
The Pebble Partnership. (May 12, 2017). “Pebble, EPA Reach Resolution in Long Standing Dispute.” Accessed on July 23, 2017 at https://corporate.pebblepartnership.com/news-article.php?s=pebble-epa-reach-resolution-in-long-standing-dispute
Contributors: Assistant Professor, Aquatic Ecology; PhD Candidate, Aquatic & Fishery Sciences; PhD Student, Aquatic and Fishery Sciences; MS Student, Aquatic and Fishery Sciences.