EPA Announces Next Steps In Bristol Bay Protection Process (Updated)

The following is courtesy of the Environmental Protection Agency:

SEATTLE (Nov. 17, 2021) – Today, EPA announced a timeframe for the agency to consider new information available to determine next steps in the Bristol Bay Clean Water Act (CWA) Section 404(c) process for the Pebble Deposit (Pebble Mine) in Southwest Alaska. If a CWA 404(c) determination is finalized, it would help 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.

“The Bristol Bay Watershed supports the largest sockeye salmon fishery in the world and highlights the essential benefits that clean water provides to the environment and to communities across the country,” said EPA Region 10 Acting Regional Administrator Michelle Pirzadeh. “Today’s announcement underscores EPA’s commitment to making science-based decisions to protect our natural environment, prevent pollution, and protect a sustainable future for all Americans.”

On Oct. 29, 2021, the Alaska District court ruled in favor of EPA’s request to remand and vacate the agency’s Aug. 30, 2019 withdrawal of its 2014 Bristol Bay Proposed Determination issued under CWA Section 404(c) (2014 PD). This ruling reinstated the 2014 PD, reinitiated the CWA Section 404(c) process, and triggered regulatory deadlines. 

CWA 404(c) regulations require EPA to either withdraw the 2014 PD or prepare a Recommended Determination “within 30 days after the conclusion of the public hearing.” Upon a showing of “good cause,” EPA can extend the regulatory deadline through a notice in the Federal Register. EPA’s Federal Register Notice, announced today, extends this timeline until May 31, 2022. An extension of the regulatory timeline will allow EPA to consider available information, including the substantial volume of new information that has become available since the agency issued the 2014 PD, to determine appropriate next steps in the 404(c) process. EPA will provide notice of any public review and comment opportunity that may be determined to be appropriate as part of next steps in this process.  

Background

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’s 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 provide 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 CWA 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 that projects can move forward. 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 valuable waters.

The push to offer permanent protection to Bristol Bay from the Pebble Mine project took a huge step earlier this month when a Trout Unlimited-led lawsuit was upheld by the U.S. District Court of Alaska.

Outdoor Life wrote the following about the lawsuit:

And while the Oct. 29 court ruling does not finalize these sweeping authorizations under the Clean Water Act, it puts the federal agency back on track to engage with sport and commercial fishermen, as well as scientists, fisheries managers, and tribes in order to determine whether one of the world’s last remaining strongholds for Pacific salmon is deserving of these protections.

This determination would be critical in the case of the widely condemned open-pit mine, which has seen a number of permit applications by different mining companies since Northern Dynasty, a Canadian company, acquired the state leases to Pebble from Teck Cominco in the early 2000’s. This was roughly 20 years after the rich deposit of gold and copper was originally discovered in the 1980s.

Update: Here’s reaction from Trout Unlimited Alaska’s director Nelli Williams:

“The timeline laid out today shows the strong commitment by the EPA to follow through and finish the work started in 2014 to add much needed Clean Water Act 404(c) protections for Bristol Bay,” said Nelli Williams, Alaska director for Trout Unlimited. “We welcome the opportunity to update the scientific record so the EPA can issue a decision as soon as possible based on the most accurate science and public input. The EPA has the opportunity to protect the most prolific wild salmon and trout fisheries on the planet and we look forward to working with the EPA to get durable safeguards finalized as soon as possible.”  

And also a press release from United Tribes of Bristol Bay:

Bristol Bay Tribes encouraged by EPA timeline for process to consider protections

DILLINGHAM, AK – Bristol Bay Tribes celebrated today’s news that the Environmental Protection Agency has set a timeline for considering permanent protections for the region. 

The agency today announced the timeline for resuming its process to review potential Clean Water Act 404(c) protections for Bristol Bay, with a deadline of May 31, 2022.

“Our Tribes look forward to engaging in this critical process for Bristol Bay. The EPA’s commitment to transparency and Tribal consultation helps restore our trust in the process,” said UTBB Executive Director Alannah Hurley. “After almost twenty years, all the parties want certainty. We are pleased EPA is moving forward in a science-based and transparent manner, and with a schedule that can allow for resolution by next summer, consistent with the wishes of our Tribes and Alaskans.”

Bristol Bay Tribes first requested Clean Water Act protections in 2010, after years of working to protect our lands and waters from the threat posed by Pebble Mine. After several years of study, EPA issued a science-based recommendation for protections in 2014 that was stalled by politics despite overwhelming public support. Today’s commitment makes clear that the agency intends to follow the law and listen to science in resuming this work. 

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United Tribes of Bristol Bay is a tribal consortium representing 15 Bristol Bay tribal governments (that represent over 80 percent of the region’s total population) working to protect the Yup’ik, Dena’ina, and Alutiiq way of life in Bristol Bay.