EPA Not Ready To Administer Permanent Protections To Bristol Bay; Will Re-Evaluate In June

This news doesn’t mean the Environmental Protection Agency is giving up the quest to implement long-term protections to the watershed from the threat of the Pebble Mine and similar projects. But it’s still considered a disappointment given the length of time this saga has dragged on. But here’s the EPA’s letter with its timeline, which will include new information to be gathered during a stretch that will last through the end of May, followed by taking the next steps in the process:

Dear Ms. Corri Feige, Ms. Michelle Johnson, Mr. John Shively, and Colonel Damon Delarosa:

On November 23, 2021, the Environmental Protection Agency Region 10 published notice in the Federal Register providing an update on the status of its 2014 Clean Water Act section 404(c) Proposed Determination regarding the Pebble deposit area located in Alaska’s Bristol Bay watershed (Enclosed). The U.S. District Court for the District of Alaska vacated and remanded EPA’s 2019 decision to withdraw the 2014 Proposed Determination. EPA Region 10’s Federal Register notice extended applicable time requirements until May 31, 2022, to consider available information, and to determine appropriate next steps in this 404(c) review process. This review includes information that has become available since EPA issued the 2014 Proposed Determination.

The 2014 Proposed Determination proposed restrictions on the discharge of dredged or fill material into certain waters within the Bristol Bay watershed associated with mining the Pebble deposit. It was issued because of concerns that such discharges could result in unacceptable adverse effects on ecologically important streams, wetlands, lakes, and ponds and the fishery areas they support including spawning and breeding areas.

I am writing to inform you that based on our evaluation to date of available information, EPA Region 10 continues to have reason to believe that the discharge of dredged or fill material associated with mining the Pebble deposit could result in unacceptable adverse effects on important fishery areas. Accordingly, I am notifying you of my intention to issue a revised Proposed Determination. EPA is sending letters at this time to ensure there is ample opportunity for full consideration of available information to determine next steps before May 31, 2022.

The Clean Water Act’s section 404(c) regulations provide an opportunity for consultation at this stage among EPA, the U.S. Army Corps of Engineers, the owners of record of the site, and the permit applicant (if any). EPA is sending this notice to the same entities it notified in 2014 as well as Chuchuna Minerals. The U.S. Army Corps of Engineers’ 2020 Final Environmental Impact Statement for the Pebble Mine indicates that discharges associated with mining the Pebble deposit could expand in the future into portions of areas where Chuchuna Minerals holds mining claims.

You may submit information for the record to demonstrate that no unacceptable adverse effects to fishery areas would result from discharges associated with mining the Pebble deposit, or that actions could be taken to prevent unacceptable adverse effects to waters from such mining. Consistent with the section 404(c) regulations, please provide your response by February 11, 2022. EPA can provide additional time if requested.

I appreciate your prompt attention to this matter. If you have any questions or wish to arrange a meeting to discuss any of these issues, please contact me or have your staff contact Cami Grandinetti, at (206) 390-8890 or Grandinetti.cami@epa.gov.

Enclosure

Cc: Doug Mecum, Acting Administrator, Alaska Region National Marine Fisheries Service

Greg Siekaniec, Regional Director U.S. Fish and Wildlife Service

Sara Longan, Deputy Commissioner Alaska Department of Natural Resources

Robert Retherford, Director and Vice President Chuchuna Minerals

Reeves Amodio, LLC, Registered Agent
Pebble East Claims Corporation and Pebble West Claims Corporation

Sincerely,

[ /s/ ] [ 1.27.2022 ]

Michelle L. Pirzadeh
Acting Regional Administrator

Some of the key points in the letter to various recipients include:

The U.S. District Court for the District of Alaska vacated and remanded EPA’s 2019 decision to withdraw the 2014 Proposed Determination. EPA Region 10’s Federal Register notice extended applicable time requirements until May 31, 2022, to consider available information, and to determine appropriate next steps in this 404(c) review process. This review includes information that has become available since EPA issued the 2014 Proposed Determination.

I am writing to inform you that based on our evaluation to date of available information, EPA Region 10 continues to have reason to believe that the discharge of dredged or fill material associated with mining the Pebble deposit could result in unacceptable adverse effects on important fishery areas. Accordingly, I am notifying you of my intention to issue a revised Proposed Determination. EPA is sending letters at this time to ensure there is ample opportunity for full consideration of available information to determine next steps before May 31, 2022.

So that could mean another entire review process is in the works after the May 31 deadline.

Here is some reaction to the news from United Tribes of Bristol Bay, which was hopeful long-term protections could be announced by June. Now that timeline doesn’t seem as realistic:

Bristol Bay Tribes Express Disappointment at more EPA Delays, Lack of Tribal Consultation; Urge EPA to Move Swiftly to Protect Bristol Bay by Summer

DILLINGHAM, AK — Today, Bristol Bay Tribes released the following statement in reaction to EPA’s announcement that the agency intends to further delay the process to protect Bristol Bay from Pebble Mine. A letter sent today indicates the EPA will issue a revised Clean Water Act Section 404(c) Proposed Determination (PD) for Alaska’s Bristol Bay watershed by May 31, 2022. This would be a step backward in the process, significantly delaying the timeline beyond the long-standing request of Tribes in the region to finalize protections by the start of the fishing season in June.   

Alannah Hurley, Executive Director of the United Tribes of Bristol Bay, released the following statement in response:

“We are deeply disappointed that after months of outreach to EPA officials requesting robust Tribal consultation on the process moving forward, EPA’s announcement today further delayed the years-long effort to protect Bristol Bay without hearing our input. The Biden administration and the EPA have committed to consult Tribes in their decision-making process, but this should have taken place before today’s announcement. Now, at least one more fishing season could be imperiled by uncertainty.  

“Not only does this move delay long-overdue and urgently needed protections, it also flies in the face of Administrator Regan’s stated commitment to environmental justice, which he recently touted on his Journey to Justice Tour,” said Hurley. “Our Tribes deserve better. The EPA must provide Tribes, fishermen, and communities in the region the certainty that their way of life, cultural and spiritual identity, and the local economies are protected. That means, first and foremost, upholding their trust responsibility to the Tribes of Bristol Bay. EPA can and must work quickly to get back on track, the science is clear and they must finalize protections for our region. As the EPA’s process moves forward, EPA must advance a science-based and transparent process that includes true Tribal consultation and opportunities for public input. We hope the agency will clarify this timeline so that we can finally achieve permanent protections for Bristol Bay, our Tribes, and way of life as soon as this summer.” 

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.

Laat week, Pebble’s parent company, Northern Dynasty Minerals, offered an update on its quest to get the gold and copper mine project back into the fold after a series of rejections by the EPA and U.S. Army Corps of Engineers:

“We continue to approach the USACE to see if they require additional information or have a decision on whether a site visit is needed, and while we are being told that the USACE is working diligently on our file, it has now been a year without discernable progress in terms of a decision. We would take significantly more comfort if we could actually see signs of progress,” said Ron Thiessen, President and CEO of Northern Dynasty. “In the meantime, we are not idle. While awaiting a decision from the USACE, we continue to assess legal options to address the many possible outcomes from their decision. We are also studying the positive economic benefits of our project for Alaska and the U.S. The Pebble project is too important to be stifled by regulatory inaction.”