“The U.S. Environmental Protection Agency (EPA) Region 10 is
publishing for public comment this proposed determination (2022 Proposed
Determination) to prohibit and restrict the use of certain waters in the
Bristol Bay watershed as a disposal site for the discharge of dredged or fill
material associated with mining at the Pebble deposit, a large ore body in
southwest Alaska. EPA Region 10 is exercising
its authority under Section 404(c) of the Clean Water Act (CWA)…and its
implementing regulations at 40 Code of Federal Regulations (CFR) Part 231
because of the unacceptable adverse effects on anadromous fishery areas in the
Bristol Bay watershed that could result from discharges of dredged or fill
material associated with such mining. Development
of a mine at the Pebble deposit and such a mine’s potential effects on aquatic
resources have been the subject of study for nearly two decades; the 2022
Proposed Determination is based on this extensive record of scientific and
technical information. The scope of the
2022 Proposed Determination applies only to specified discharges of dredged or
fill material associated with mining in the Pebble deposit.”
If a Final Determination substantially
similar to the Proposed Determination is eventually issued, the long-debated Pebble Mine
might finally die a well-deserved death, and the health of the Bristol Bay
watershed might be maintained.
And that would be a good thing for, as the Proposed
Determination notes,
“Alaska’s Bristol Bay watershed…is an area of unparalleled
ecological value, hosting salmon diversity and productivity unrivaled anywhere
in North America…The Bristol Bay watershed provides intact, connected habitats—from
headwaters to ocean—that support abundant, genetically diverse wild Pacific
salmon populations. These salmon
populations, in turn, help to maintain the productivity of the entire ecosystem,
including numerous other fish and wildlife species.
“The Bristol Bay watershed’s streams, wetlands, and other
aquatic resources support a more than 4,000-year-old subsistence-based way of
life for Alaska natives, as well as world-class, economically important
commercial and sport fisheries for salmon and other fishes. The Bristol Bay watershed supports the world’s
largest run of Sockeye Salmon, producing approximately half of the world’s
Sockeye Salmon…Bristol Bay’s Chinook Salmon runs are also at or near the world’s
largest, and the region also supports significant Coho, Chum, and Pink salmon
populations. Because no hatchery fishes
are raised or released in the watershed, Bristol Bay’s salmon populations are
entirely wild and self-sustaining…
“…The total economic value of the Bristol Bay watershed’s salmon
resources, including subsistence uses, was estimated at more than $2.2 billion
in 2019…The Bristol Bay commercial salmon fishery generates the largest
component of this economic activity, resulting in 15,000 jobs and an economic
benefit of $2.0 billion in 2019, $990 million of which was in Alaska…”
Of course, determining what is “good” often turns out to be
a matter of perspective, and from
the perspective of the Pebble Limited Partnership, the entity hoping to develop
the Pebble Mine, the Proposed Determination doesn’t look good at all. The Washington Post reported that
“the company behind the mine, Pebble Limited Partnership,
said Wednesday that it will still work to secure a permit to dig up ore bearing
gold, copper and molybdenum, used as an alloy in steel.
“John Shively, the company’s chief executive, said it is ‘ironic’
that the Biden administration would block a domestic source of copper, a
crucial material for renewable energy, when it has set a goal of eliminating
the nation’s contribution to global warming by the middle of the century…
“Pebble Limited Partnership argues that its hamstrung project
would have created 850 direct jobs and generated more than $150 million in
state and local taxes a year.
“Shively, the chief executive, pointed to a U.S. Army Corps
of Engineers conclusion in 2020 that the mine would have no ‘measurable effect’
on fish populations, noting that foreign miners ‘simply do not have the same
environmental standards as we do.’”
Such comments make it clear that the Pebble Limited Partnership
has not given up its fight to develop the mine.
As The Washington Post also reported,
“Alannah Hurley, executive director of United Tribes of
Bristol Bay, a consortium of tribal governments, called the EPA’s announcement
a ‘monumental step.’
“’Our tribes have been asking for this for the last 12 years,’
added Hurley, who is Yup’ik. But she
warned that the federal government has come close to protecting these waters in
the past, only to fall short.
“’We’ve been here before,’ she said.”
In fact, the fight to protect the Bristol Bay watershed from the impacts of mining has been a long, harrowing roller coaster ride, which has seen the fortunes of both the fishermen, natives, and conservationists, as well as the Pebble Limited Partnership, wax and wane.
In
2014, the Obama administration acted to restrict mining in the watershed, but
didn’t complete such action before President Obama left the White House. Pebble Limited Partnership had sued to protect
its interests, and one of the Trump administration’s first significant acts was
to settle such lawsuit by agreeing to let the Partnership apply for the needed
permits. However, conservationists
responded by bringing a lawsuit of their own, arguing that the Trump
administration’s settlement violated both the Clean Water Act and the
Administrative Procedures Act, which governs federal rulemaking. After significant legal debate, the
trial court agreed that the Trump administration’s actions violated the
applicable statutes.
While that was a win for the watershed, it came after two
seemingly contradictory decisions by the Army Corps of Engineers. In July 2020, the Corps released the final
environmental impact statement for the permits.
Despite finding
that the Pebble Mine would
“permanently remove approximately 99 miles of streambed
habitat,”
that
“Direct effects on fish, including displacement, injury, and
mortality, would occur with the permanent removal of stream habitat,”
and that
“Stream productivity…would be reduced to some degree with the
loss of physical and biological inputs.
These impacts would be permanent, and certain to occur,”
“would not be expected to have a measurable effect on fish
numbers and result in long-term changes to the health of the commercial
fisheries in Bristol Bay.”
It looked as if Pebble Limited Partnership was certain to
receive the permits needed to begin operations. But that was before the
Partnership found itself publicly embarrassed after environmental advocates,
posing as potential investors in the Pebble Mine, recorded company
representatives admitting that they were planning a much larger operation than
the one described to the Corps of Engineers, which might continue for 160 years,
instead of the publicly claimed 20, and double the mine output originally claimed.
Whether or not such factors came into play, the
Army Corps of Engineers ultimately denied the needed permits, saying that the
Pebble Mine
“does not comply with Clean Water Act guidelines.”
The
Pebble Limited Partnership appealed that decision to the Corps’ Pacific Ocean
Division, which is headquartered in Hawaii.
Such appeal is still pending.
Thus, the Proposed Determination, while encouraging, does
not guarantee that the Pebble Mine will be defeated. The pendulum, which has already swung so many
times, could still swing again.
As one might expect, both Mr. Snyder and Mr. Hed were cautiously optimistic about the future, with the emphasis on “cautiously.” Both recognized that, with the issuance of the Proposed Determination, the Bristol Bay watershed is in about the same place as it was in the closing days of the Obama administration, which didn’t finalize the protections in time to prevent the Trump administration from undoing them.
While the 2022 Proposed
Determination is somewhat more comprehensive than its 2014 counterpart, right
now, it’s just as unfinished.
As Mr. Hed observed,
“We’re happy that we’re back on track, but we can’t be
satisfied with being back on track. We’ve
got to push, push, push until we reach our goal.”
He also noted that, if conservation efforts fall short of their
goal once again, the consequences for the watershed could be dire. While Pebble Mine is getting all of the media
attention, about 800 square miles of mining claims have been filed for Bristol
Bay region; should the Pebble Mine be approved, and the related infrastructure,
including roads and a power plant large enough to supply the electrical needs
of the city of Fairbanks, be built, such development will encourage others to develop
other mines, which collectively will have a catastrophic impact on the
watershed.
Fortunately, the conservation goals are now within
sight. The
EPA will be accepting comments on the Proposed Determination through July 5,
and will be holding three public hearings, including one Zoom hearing on June
16, which will give the public plenty of opportunity to show their support.
Once the public comment period is over, the EPA will draft
and, eventually, issue a Final Determination regarding the discharge of dredged
and fill materials into the Bristol Bay watershed. It is critical that such Final Determination
be issued well in advance of the 2024 election, to prevent it being blocked by
the next administration, and to prevent Congress from overriding the
regulatory action pursuant to the Congressional Review Act.
But assuming that the EPA can act with the needed dispatch, and
also assuming that the courts do not intervene, there may finally be a real
chance that meaningful protections for the Bristol Bay watershed will be put in
place. The Pebble Mine may, at long last, be defeated.
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