By Taryn Kiekow Heimer, Natural Resources Defense Council
In a purely political move unsupported by science, the Environmental Protection Agency (EPA) today withdrew its proposal for common-sense restrictions that would have protected Bristol Bay, Alaska from the giant Pebble Mine – a colossal gold and copper mine proposed at the headwaters of Bristol Bay’s famous salmon runs. EPA had called for the restrictions in 2014 using its authority under Section 404(c) of the Clean Water Act after finding that a large-scale mine like the proposed Pebble Mine would have “unacceptable adverse effects” on the water, fisheries and wildlife of Bristol Bay.
In scrapping the proposed determination, EPA abdicates its authority to the U.S. Army Corps of Engineers—which has recklessly fast-tracked the permitting process and expects to issue a permit by “mid-2020”:
EPA believes it is appropriate to defer to the Corps’ decision-making process to sort out the information before deciding whether to initiate a Section 404(c) process based on the full record before the agencies.
EPA has determined that it is most appropriate to participate in the 404 permitting processes to address concerns as the record develops rather than continue with a separate 404(c) action initiated in 2014. This approach will ensure that both agencies will be able to consider the full record and engage on issues consistent with their respective roles provided for under the Clean Water Act and EPA’s implementing regulations.
Instead of using its 404(c) authority to protect Bristol Bay, EPA will rely on a corrupt permitting process and toothless 404(q) process to “elevate” the issue within the Army Corps.
Today’s landmark decision prioritizes a foreign mining corporation over the people, fish and aquatic resources of Bristol Bay.
EPA has abandoned science, American jobs, and the people and communities of Bristol Bay and has shown once again that – in this administration – politics trumps people.
The Trump EPA’s history of helping the Pebble Mine:
Shortly after Trump took office, EPA and Northern Dynasty Minerals (the Canadian-based junior mining company backing the Pebble Mine) settled a lawsuit Northern Dynasty had brought against EPA, challenging its proposed determination.
The settlement was an undisguised gift to Pebble. A CNN expose broke the story behind the timing of the settlement:
Less than an hour after meeting with Pebble CEO Tom Collier, then EPA Administrator Scott Pruitt directed his staff to reverse course on Bristol Bay. He had not been briefed on the EPA’s 2014 Bristol Bay Watershed Assessment or the science or rationale behind it. In fact, his staff was still putting together a briefing book for him.
“We have been directed by the administrator to withdraw the proposed determination,” reads an email from EPA’s Acting General Counsel Kevin Minoli to EPA senior staffers.
“As far as the basis [for the decision], we will need to develop the most defensible basis we can….” [Emphasis added]
In July 2017, EPA indeed proposed to withdraw its Proposed Determination and accepted public comment through October 2017. It received over one million comments—99.9% of the docket—supporting the proposed restrictions.
Even Scott Pruitt couldn’t rationalize the withdrawal.
In January 2018, EPA decided not to scuttle the Obama-era proposed determination.
“We have restored process, reviewed comments, and heard from a variety of stakeholders on whether to withdraw the proposed restrictions in the Bristol Bay watershed,” said Pruitt.
“Based on that review, it is my judgment at this time that any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.” [Emphasis added]
Pruitt also said that Pebble’s “permit application must clear a high bar, because EPA believes the risk to Bristol Bay may be unacceptable.”
Now—without any public comment and ignoring its own science—EPA has reversed course again.
Under the leadership of General Counsel Matthew Leopold, EPA is now abandoning its 404(c) restrictions on the mine, instead relying on a permitting process the agency itself has questioned. (Note that EPA Administrator Andrew Wheeler had to recuse himself as his former firm provided services for Pebble, including setting up that meeting with Pruitt.)
The Pebble Mine Poses Significant and Catastrophic Risk to the Bristol Bay Watershed, and the People and Wildlife Who Depend on It:
Today’s reversal comes just weeks after the EPA submitted comments to the U.S. Army Corps of Engineers highly critical of the draft Environmental Impact Statement (EIS) prepared during the permitting process. EPA wrote that the draft EIS lacks critical information and underestimates risks to water and fish:
[T]he DEIS appears to lack certain critical information about the proposed project and mitigation, and there may be aspects of the environmental modeling and impact analysis which would benefit from being corrected, strengthened, or revised. Because of this, the DEIS likely underestimates impacts and risks to groundwater and surface water flows, water quality, wetlands, aquatic resources, and air quality from the Pebble Project. Inclusion of the additional information and analyses we have identified, or further explanation in the EIS of these issues, is essential to more fully evaluate and disclose the potential project impacts and identify practicable measures to mitigate those impacts.
EPA also found that the draft EIS and supporting documents “do not contain sufficient information to support a reasonable judgment” that discharges from the proposed Pebble Mine will comply with the Clean Water Act, including “concerns regarding the extent and magnitude of the substantial proposed impacts to streams, wetlands, and other aquatic resources that may result, particularly in light of the important role these resources play in supporting the region’s valuable fishery resources.” In addition, EPA found that the project “may have substantial and unacceptable adverse impacts on fisheries resources in the project area watersheds, which are aquatic resources of national importance,” and the agency elevated the permit review under 404(q) of the Clean Water Act.
In a 404(q) letter sent last week to the Army Corps, the U.S. Fish and Wildlife Service agreed:
We believe the project as proposed with have significant adverse impacts on important fish, wildlife, and aquatic habitats…the proposed work will result in substantial and unacceptable impacts to aquatic resources of national importance. Consequently, we recommend that a permit not be issued for the project as currently proposed. We recommend more robust analysis be conducted to thoroughly identify, analyze, and reduce risks to these resources…
The proposed Pebble Mine would threaten the world’s greatest wild salmon fishery that generates $1.5 billion in annual revenue and 14,000 jobs. Salmon have also sustained the subsistence culture of Alaska Natives for millennia. If ever there was a need to invoke 404(c), it is to protect Bristol Bay’s waters from the proposed Pebble Mine—which EPA found would have “significant” and even “catastrophic” effects on the region.
Section 404(c) of the Clean Water Act is a rarely used but essential tool. It allows the EPA to restrict, prohibit, deny, or withdraw the use of an area as a disposal site for dredged or fill material “whenever” the agency determines the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational opportunities.
EPA initiated the 404(c) process to protect Bristol Bay from Pebble Mine in 2014 at the express request of Bristol Bay tribes, the Bristol Bay Native Corporation, the commercial and sport fishing industries and others. Local stakeholders are joined by commercial fisherman, native peoples, jewelers, chefs, hunting and angling organizations, environmentalists and many others who believe EPA is acting responsibly to protect one of our nation’s greatest water resources.
EPA started the 404(c) process only after conducting an extensive scientific assessment of the Bristol Bay watershed to determine the potential impacts of large-scale mining on salmon and other fish populations, wildlife, development, and Alaska Native communities in the region. EPA’s Watershed Assessment found that Pebble Mine would have significant impacts on fish populations and streams surrounding the mine site. A tailings dam failure releasing toxic mine waste would have “catastrophic” effects on the ecosystem and region.
Those conclusions were the culmination of three years of data review, scientific analysis, public hearings, peer review, and revision. Up until now, EPA has taken every precaution to ensure that its assessment represents the best science regarding potential large-scale mining in the Bristol Bay watershed. In a process that far exceeds industry and academic standards of peer review, its Watershed Assessment had two rounds of peer review in which 12 independent scientists reviewed the scope and content of the assessment and offered suggestions that EPA incorporated into its final assessment.
Furthermore, two rounds of public comment generated over 1.1 million individual comments. During the first comment period, over 90 percent of the 233,000 comments received supported EPA’s assessment. In the second comment period, over 650,000 people wrote to EPA explicitly supporting the Watershed Assessment and asking the agency to protect Bristol Bay; 73 percent of all comments, 84 percent of individual comments from within Alaska and a staggering 98 percent of individual comments from within Bristol Bay supported EPA action.
The science is clear. Opposition to Pebble Mine is clear. Yet EPA has abandoned the extensive scientific evaluation that prompted it to propose restrictions in 2014.
What’s clear is that EPA has no interest in listening to Alaskans, Americans or science. It should not risk the thousands of American fishing jobs supported by Bristol Bay’s waters by allowing a foreign owned company to build a massive mine at the bay’s headwaters.
Over and over, Alaskans have spoken: They want their salmon and waterways protected. Americans have spoken: they want EPA to protect places like Bristol Bay. The science has spoken: EPA’s own Watershed Assessment concluded that the proposed Pebble Mine would be catastrophic to Bristol Bay’s fisheries and communities.