The final rendition of the U.S. Environmental Protection Agency’s Bristol Bay Assessment does not opine on whether large-scale mining should be allowed in the Bristol Bay watershed; the report does, however, provide “an important tactical resource” for those opposed to developing the world-class copper-gold-molybdenum deposit at Pebble.
“The assessment is a technical resource for governments, tribes and the public as we consider how to address the challenges of large-scale mining and ecological protection in the Bristol Bay watershed," said EPA Region 10 District Administrator Dennis McLerran.
Pebble, considered to be the largest known undeveloped copper-gold-molybdenum deposit on the planet, contains an estimated 80.6 billion pounds of copper, 107.4 million ounces of gold and 5.6 billion pounds of molybdenum.
“The Pebble deposit is an extraordinary deposit; it has the potential to be one of the world’s largest porphyry gold and copper mines,” admitted McLerran.
But, this extraordinary deposit is found in a region of Southwest Alaska that is also host to the largest sockeye salmon fishery in the world, which, according to EPA’s report produces nearly 50 percent of the world’s wild sockeye salmon with runs averaging 37.5 million fish each year.
“The Bristol Bay watershed, and the fishery there, and the size and scope of the Pebble deposit are pretty unique,” McLerran said during a Jan. 15 media conference in conjunction with the release of the final Bristol Bay Assessment.
When asked whether EPA believed a mine at Northern Dynasty’s Pebble deposit and the Bristol Bay fishery could co-exist, McLerran responded, “I think the assessment speaks for itself.”
The regional administrator went on to explain that the final rendition of EPA’s Bristol Bay Assessment has identified “direct impacts on the fishery that include loss of streams and wetlands that are fish-bearing streams and potential impacts on the fishery in the Bristol Bay watershed.”
McLerran emphasized that the finalization of the report does not represent a regulatory decision by the EPA and that the federal agency will now begin the process of determining what actions, if any, should be taken.
“There are a variety of authorities under the Clean Water Act and the National Environmental Policy Act and we have made no decision with respect with what comes next or what authorities we might use going forward,” the EPA administrator explained.
Pre-emptively veto
The most extreme of the options being considered by EPA is to exercise a presumed authority under Section 404 of the Clean Water Act to pre-emptively veto the permits needed to develop a mine at Pebble.
Under section 404 of the Clean Water Act, the U.S. Army Corps of Engineers is charged with issuing permits for discharge into wetlands. Some 130 million acres of Alaska, about the combined area of California and Kentucky, are considered wetlands. Much of this vast expanse, including the Pebble property, is treeless areas of moist and wet tundra underlain by a permanently frozen layer that prohibits water drainage.
Although the Corps has been relegated the authority over the discharge permits on these wetlands, under section 404(c) EPA was granted the power to prohibit, restrict, or deny such permits that pose an unacceptable adverse impact to fisheries or other water uses.
While CWA Section 404(c) has never been used to deny a project the right to apply for permits, EPA claims it has the power to do so.
In 2010, Nunamta Aulukestai, a Southwest Alaska Native conservation group and fellow Pebble opponents such as Trout Unlimited urged the EPA to test the extent of its presumed Clean Water Act authority to proactively strike down the ability to permit Pebble.
Before responding to these requests, EPA decided to carry out the Bristol Bay Assessment.
“Now that the assessment is complete, we at EPA will begin the process of deciding how now to respond to the requests from tribes and others to take regulatory action,” McLerran explained.
Conservation groups have made it clear what actions they want the federal government to take.
“The science is indisputable,” said Trout Unlimited President and CEO Chris Wood. “Bristol Bay is the world’s most important wild salmon fishery, and no place for a large-scale industrial mine. The EPA has done its job, and it’s now time for the Obama administration to use its authority under the Clean Water Act to stop the mine and protect the $1.5 billion-per-year fishery.”
Sen. Mark Begich, D-Alaska, agrees that the science is indisputable.
“I have always said I will let science be my guide, and my decision whether to support the Pebble project will be based on this report,” Begich said, immediately upon release of the Bristol Bay assessment.
That science guided the senator to believe that the development of Pebble poses too great a risk to the fishery, making him the first member of Alaska’s current congressional delegation to speak directly against the development of a mine at the project.
“I have long been a strong supporter of Alaska’s mining industry and believe we must do all we can to support resource development industries that provide family wage jobs for Alaskans and keep our economy strong. But years of scientific study has proven the proposed Pebble Mine cannot be developed safely in the Bristol Bay watershed,” Begich said in his first public statement in opposition to the project.
“Thousands of Alaskans have weighed in on this issue, and I have listened to their concerns. Pebble is not worth the risk,” he added.
Rigorous permitting
While Sen. Begich has taken a position on the development of Pebble, the balance of Alaska’s delegation – Sen. Lisa Murkowski, R-Alaska and Rep. Don Young, R-Alaska – continues to contend that Pebble should be evaluated within the confines of the United States’ rigorous permitting process.
“If the EPA has concerns about the impact of a project, there is an appropriate time to raise them – after a permit application has been made, not before, “said Murkowski. “It is clear that a pre-emptive veto is still being considered by EPA. Such a veto is quite simply outside the legal authority that Congress intended to provide EPA.”
The potential that the EPA may proactively thwart the ability to apply for permits to develop Pebble was a hot topic during an Oct. 10 U.S. House Subcommittee on Energy and Mineral Resources hearing provocatively titled “EPA vs. American Mining Jobs: The Obama Administration’s Regulatory Assault on the Economy.”
During the hearing, Energy and Minerals Chairman Doug Lamborn, R-Colo., described the Bristol Bay Assessment as “an effort to pre-emptively veto mining across a whole region of Alaska.”
“At the heart of this issue is the lack of confidence in permitting by the federal government,” testified Lamborn. “If, without cause, an agency can retroactively veto issued permits or prospectively veto permits not applied for, then how can any company, contractor or concessionaire have confidence to invest in America when their permit is not worth the paper it is written on?”
Alaska’s mining community, which characterized EPA’s work on the assessment as rushed and flawed, agrees that the federal agency should withhold judgment until the Pebble Partnership provides a mine plan.
“As a miner, a lifelong Alaskan, and an American, I am disappointed. First and foremost, natural resource development projects should always be evaluated by science and facts. Nothing more, nothing less,” said AMA Executive Director Deantha Crockett. “In its assessment, the EPA has done an injustice to all development projects by supposing scenarios of poorly designed mines, omitting real-life standards that mining projects must follow, and exaggerating the impacts resulting from what is an impossible scenario.”
“We had certainly hoped that EPA would depoliticize this process and come back to its legitimate and important role of evaluating this project based on the best available science, an evaluation which should take place in the very comprehensive permitting process established by federal law,” said Pebble Partnership CEO John Shively. “Clearly this report should not be used as the basis for any type of agency decision regarding Pebble.”
Northern Dynasty, currently the sole owner of the Pebble Partnership, aims to have a comprehensive plan to mine the world-class copper-gold-molybdenum deposit by April.
“We look forward to defining a proposed development plan for Pebble and to having it reviewed by federal and state regulatory agencies under the National Environmental Policy Act (NEPA) in the months and years ahead,” said Northern Dynasty President and CEO Ron Thiessen. “We have every expectation that the environmental impact statement process required by NEPA, to be administered by the U.S. Army Corps of Engineers, will ultimately provide a much more rigorous, fair and transparent review of the science surrounding this important project.”
Even if EPA does chose to withhold judgment until the permitting process is underway, it is likely the Bristol Bay assessment will continue to play a role.
“The assessment itself will serve as a basis for EPA’s responses to the May 2010 request from the nine Bristol Bay region tribes. It also will be an important tactical resource for the public, tribes and governments who must consider how best to address the challenges of mining and ecological protection in this special place, the Bristol Bay Watershed,” McLerran predicted.
