Every now and then, I’ll write something about Alaska’s Bristol Bay, its salmon, its people, and the mining company that is willing to put them all at risk in order to profit from copper and gold. I’ve been following the issue for many years, first wrote about it about four years ago, and revisit it every now and then, when new developments make it worth discussing again.
The fight to protect Bristol Bay’s still near-pristine
ecosystem, which includes the world’s largest run of wild salmon, untainted by
hatchery fish—or, if you’re on the other side of the issue, the fight to
develop the Pebble Mine and its supporting infrastructure, in order to access a
vast reserve of copper ore and other valuable metals—is an epic, seemingly
everlasting story, in which each side has taken its turn facing apparent defeat, and
then found a way to keep fighting on.
It is a story of clashing values and changing political
fortunes, of alleged back room deals, of people tied close to the land, with
limited financial resources, trying to save a river, ancient traditions, and a
way of life, and of foreign corporations who seek to create profit, without any
apparent concern for what they might destroy.
Right now, events seem to be coming full circle, with the
balance again seeming to favor Bristol Bay and its salmon, although there is no
telling when that may change, as it has changed so many times before.
“seeking to reinitiate the process of making a Clean Water
Act (CWA) Section 404(c) determination to protect certain waters in Bristol
Bay, Alaska. If such a determination is
finalized, it would protect waters over the long term that are essential to
commercial, subsistence, and recreational fisheries, and other activities that
support Alaska Natives and communities in the state.”
In its press release, the agency notes that
“Bristol Bay supports commercial, subsistence, and
recreational fisheries that are worth hundreds of millions of dollars each year
and create thousands of jobs. Bristol
Bay fishery resources have supported a subsistence-based way of life for Alaska
Natives for over 4,000 years.
“The Bristol Bay watershed is an area of exceptional
ecological value with salmon fisheries unrivaled anywhere in North
America. The region’s streams, wetlands,
lakes and ponds provides essential habitat that support all five species of Pacific
salmon found in North America: coho, Chinook, sockeye, chum, and pink. The salmon populations are critical to the
health of the entire ecosystem, which is home to more than 20 fish species, 190
bird species, and more than 40 terrestrial mammal species, including bears,
moose, and caribou.”
The release also explains,
“The Clean Water Act generally requires a Section 404 permit
from the U.S. Army Corps of Engineers to authorize a discharge of dredged or
fill material into certain streams, wetlands, lakes and ponds. Section 404 directs EPA to develop the
environmental criteria used to make permit decisions.
“The U.S. Army Corps of Engineers authorizes thousands of
Section 404 permits every year, and EPA works with the Corps and developers to
resolve environmental concerns so projects can move forward. However, the Clean Water Act, in Section
404(c), also authorizes EPA to prohibit or restrict fill activities if EPA
determines a discharge would have an unacceptable adverse effect on certain
resources.
“EPA has used its Section 404(c) authority sparingly, issuing
final determinations only 13 times in the CWA’s 50-year history. The agency’s use of the authority has typically
involved major projects with significant impacts on some of America’s most
ecologically evaluable waters.”
A Section 404(c) determination, if made, would effectively
prevent development of the Pebble Mine, and protect the integrity of the
Bristol Bay ecosystem. The press release
makes it sound very much like the EPA was planning to issue just such a
determination.
And maybe it will.
But don’t lose track of the statement that the agency
intended to “reinstate the process” of making a Section 404(c)
determination. Understand that we’ve
been down this road before.
In
the same year, the EPA requested
“public comment on a proposed determination to restrict the use
of certain waters in the Bristol Bay watershed for disposal of dredged or fill
material associated with mining the Pebble deposit, a large ore body in
southwest Alaska. EPA Region 10 is
taking this step because of the high ecological and economic value of the
Bristol Bay watershed and the assessed unacceptable environmental affects that
would result from such mining. This proposed
determination relies on clear EPA authorities under the Clean Water Act (CWA), and is based on peer-reviewed scientific and
technical information…”
The EPA received
over 675,000 comments on the proposed determination, most of them favoring the
EPA’s use of its Section 404(c) authority.
The Pebble Limited Partnership, which was seeking to develop the Pebble
Mine, sued the EPA in an effort to short-circuit such Section 404(c) determination.
That happened during while President Barak Obama was in office. But in January 2017, Donald Trump entered the
White House, after running on a
Republican Party platform that favored extractive industries and disfavored
regulations that interfered with such industries’ operations,
and spoke approvingly of
“government [which] valued the role of extractive industries,
and rewarded their enterprise by minimizing its interference with their work.”
Thus,
it wasn’t long before Trump’s EPA revisited the agency's proposed determination on
Bristol Bay. After a brief meeting
between the Chief Executive Officer of the Pebble Limited Partnership and Scott
Pruitt, the new head of Trump’s EPA, which reportedly lasted for less than an
hour, the EPA
announced, on May 12, 2017, that it had
“entered into a settlement agreement with the Pebble Limited
Partnership to resolve litigation from 2014 related to EPA’s prior work in the
Bristol Bay watershed in Alaska. This
settlement provides the Pebble Limited Partnership (Pebble) the opportunity to
apply for a Clean Water Act (CWA) permit from the U.S. Army Corps of Engineers
before EPA may move forward with its CWA process to specify limits on the
disposal of certain material in connection with the potential ‘Pebble Mine.’”
After
two years of controversy and a few starts and stops, Trump’s EPA took the next
step and, on August 30, 2019, announced its intention to withdraw its proposed
Section 404(c) determination. Conservation
interests, fishermen, and fish were on the wrong side of the EPA decision, and Pebble Limited Partnership was in the ascendancy.
In the meantime, the Corps of Engineers began to move
forward with an environmental impact statement that had to be completed before
a Section 404 permit could be issued. When
the final EIS was issued, it found that the Pebble Mine would eliminate 99 river
miles of fish habitat near the mine site, but would pose little
risk to the greater area around Bristol Bay.
The Pebble Partnership was close to declaring
victory.
“a group of elitist sportsmen in America that want to keep
Bristol Bay as their personal playground.”
Suddenly, a Pebble Mine victory was not assured. The same Trump who liked to keep big-money
Republicans happy by slashing environmental regulations might well seek
to please such cronies by blocking the mine.
And that’s just what happened. Despite
its conclusions in the Final Environmental Impact Statement, the Corps of Engineers,
on August 24, 2020, decided that the Pebble Mine
“could have substantial environmental impacts within the
unique Bristol Bay watershed and lacks adequate compensatory mitigation.
“Given these concerns, the U.S. Army Corps of Engineers finds
under Section 404 of the Clean Water Act that the project, as proposed, would
likely result in significant degradation of the environment and would likely
result in significant adverse effects on the aquatic system or human environment…
“Therefore, the Corps finds that the project, as currently
proposed, cannot be permitted under section 404 of the Clean Water Act.”
What had looked like a clear Pebble Mine win just a few
months ago was now looking very much like a loss.
Still, the fight wasn’t over. Last
January, both the Pebble Partnership and the State of Alaska appealed the Corps’
decision not to issue a Section 404 permit.
Such appeal remains pending, although both
the complexity of the issues involved and the recent replacement of the officer
presiding over the appeal has delayed the process, which probably will take
another year to resolve.
And, last January, Trump was replaced by President Joseph
Biden, and Trump’s EPA, which seemed most dedicated to protecting corporate cash
flows, was replaced by an EPA dedicated to its original mission of protecting
the environment instead.
So right now, the Pebble Partnership is close to a loss. But it would be a mistake to count them out
too soon.
The appeal of the Corps of Engineers decision to deny a Section
404 permit is still ongoing, and if that decision goes against them,
nothing will prevent the Pebble Partnership from challenging such decision in
court. And nothing will prevent them
from challenging an EPA Section 404(c) determination, if and when such
determination is made.
Trump may be out of the White House, and his EPA may have
gone with him, but he made plenty of appointments to the federal courts,
including three Supreme Court justices.
Without exception, those he appointed tend to be hostile toward the
regulatory process, and most tend to be friendly to big business, too; few if
any are predisposed to favor pro-conservation litigants.
So Pebble could still lose every administrative decision,
yet win in the courts.
Thus, Trout Unlimited recognizes that
“Congressional legislation is needed to assure that Pebble—or
any other mining company—does not return in the future with plans to operate in
the Bristol Bay region.”
Whether there is broad enough support in Congress for such
legislation is an open question, for federal legislators receive a lot of
corporate donations, so plenty of them favor industry over the environment, too.
The unpleasant fact is that, in the end, the fate of Bristol
Bay, and of the nation’s other remaining fisheries, in freshwater and in the
salt, lies in the political sphere.
Science can only take them so far, before being overthrown by a
conservation-averse bureaucrat or a piece of legislation.
Thus, it behooves every angler, and every person who cares
about the future of fishery resources, to remember that fact when they vote,
and to support the candidates and platforms that support the natural resources
that, in the end, support us all.
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