EPA Restores Federal Protection Mandates For Bristol Bay Watershed (Updated)
As has it been previously pleaded to do, President Joe Biden’s administration announced steps will be taken to one again provide protection to the Bristol Bay watershed via the Clean Water Act.
First, here’s the Environmental Protection Agency’s press release:
WASHINGTON – Today, EPA took an important step in seeking to reinitiate the process of making a Clean Water Act (CWA) Section 404(c) determination to protect certain waters in Bristol Bay, Alaska. If such a determination is finalized, it would 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 is an Alaskan treasure that underscores the critical value of clean water in America,” said EPA Administrator Michael S. Regan. “Today’s announcement reinforces once again EPA’s commitment to making science-based decisions to protect our natural environment. What’s at stake is preventing pollution that would disproportionately impact Alaska Natives, and protecting a sustainable future for the most productive salmon fishery in North America.”
Under the previous administration, EPA issued a July 2019 notice withdrawing its 2014 Proposed Determination issued under CWA Section 404(c). This action terminated the review process for Bristol Bay.
A recent Ninth Circuit court decision found that EPA can withdraw a Proposed Determination “only if the discharge of materials would be unlikely to have an unacceptable adverse effect.” The agency believes the 2019 withdrawal notice did not meet the Ninth Circuit’s standard. On remand from the Ninth Circuit, the Alaska federal district court recently directed EPA to file a proposal for additional court proceedings by September 10.
Today, the U.S. Department of Justice, in a filing in the district court, is announcing EPA’s intent to request that the 2019 withdrawal notice be remanded and vacated. If the court grants the motion, remand and vacatur would automatically reinitiate EPA’s 404(c) review process and the agency would announce a schedule for resuming a process to protect certain waters in the Bristol Bay watershed—including opportunities for public input.
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.
Background
The Clean Water Act 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 projects can move forward. However, the Clean Water Act, in 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.
For more information visit: https://www.epa.gov/bristolbay.
Now, some reaction, first from SalmonState:
“The Environmental Protection Agency’s announcement that it plans to cease defending the Trump administration’s backroom deal abandoning science-based protections for the world’s most productive sockeye salmon habitat, Bristol Bay, is a step in the right direction. We thank the Biden administration for moving to restore the public’s trust in the EPA and putting the EPA’s Proposed Determination back on track. We encourage the Biden administration to finish the job and finalize Clean Water Act Section 404(c) protections for Bristol Bay, ensuring that the world’s largest wild salmon fishery and its 15,000 jobs and traditional salmon-based ways of life are no longer threatened by the proposed Pebble Mine.”
— Tim Bristol, SalmonState Executive Director
SalmonState works to keep Alaska a place wild salmon and the people who depend on them thrive.
United Tribes of Bristol Bay (along with Bristol Bay Native Corporation and Bristol Bay Economic Development Corporation:
DILLINGHAM, AK – Bristol Bay Tribes and communities celebrated today’s announcement that the Environmental Protection Agency will resume work on permanent protections for the Bristol Bay watershed that could safeguard the region from mines like the Pebble project.
In a court filing, the agency said it will reinstate the 2014 “proposed determination” under section 404(c) of the Clean Water Act, that if finalized, would have restricted mining in the region to protect the watershed. With today’s decision EPA is now resuming the process that is needed to finalize protections for the watershed.
“This announcement is a historic step forward in the long fight to protect Bristol Bay, our fishery, and our people,” said Robert Heyano, President of United Tribes of Bristol Bay. “The fifteen federally recognized Tribes of the United Tribes of Bristol Bay who call this region home, have worked for decades to protect our pristine watershed that sustains our sacred indigenous way of life. Today, we applaud Administrator Regan for reinstating the process to consider protections for Bristol Bay and for respecting tribal sovereignty. The people of Bristol Bay are counting on the EPA to listen to the science and finish the job of protecting our lands and waters.”
Bristol Bay Tribes first petitioned EPA for Clean Water Act protections in 2010, a request that quickly garnered bi-partisan support across the nation including from sport and commercial fishermen, environmentalists, jewelers, and others who support Bristol Bay, and ultimately received the support of millions of Americans. Through mid-September, more than 2.1 million comments had been submitted to EPA supporting Bristol Bay protections since the 2010 request was made.
Today’s filing resulted from the lawsuit brought by Tribes, fishermen, conservation organizations and others over the Trump Administration’s political decision to rescind those protections.
“This news provides a welcome step toward certainty for our fishery and our communities,” said Bristol Bay Economic Development Corp. CEO Norm Van Vactor. “We’re thankful to see the EPA’s work to protect our waters back on track. Permanent protections will enable our region to focus on growing and diversifying sustainable economic opportunities and building a robust future – rather than defending our waters.”
In the filing, the EPA also acknowledged that the withdrawal of the proposed determination did not meet the court’s standard for appropriately considering the devastation a mine like Pebble would cause in the Bristol Bay watershed.
“Bristol Bay’s Tribes have worked to protect our waters since time immemorial, and we are grateful that the EPA has decided to reinstate the process for permanent protections for Bristol Bay,” said BBNA President/CEO Ralph Andersen. “We hope the agency will work quickly to incorporate all the available science into the proposed determination and issue a final determination that provides durable protections for the headwaters of our fishery.”
Bristol Bay Native Association represents 31 Bristol Bay Tribes & is the regional nonprofit tribal consortium providing social, economic, and educational opportunities to tribal members.
Bristol Bay Economic Development Corporation represents 17 CDQ communities & exists to promote economic growth and opportunities for Bristol Bay residents through sustainable use of the Bering Sea fisheries.
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.
The Bristol Bay Defense Fund:
(Washington, DC/Alaska) — Today, the U.S. Environmental Protection Agency (EPA) announced their intent to resume work to establish protections for the Bristol Bay watershed that could ensure a large-scale mine like the Pebble Mine is not allowed to devastate the region’s waters and lands. The EPA filed a joint motion in federal court announcing its intention to file a motion later this month that would reverse the Trump administration’s withdrawal of proposed protections for the Bristol Bay watershed and restart the administrative process under Section 404(c) of the Clean Water Act.
EPA’s proposal would vacate the withdrawal of proposed protections for Bristol Bay and reinstate the 2014 “proposed determination,” a set of proposed restrictions that, if completed, would have limited the scope of mining in Bristol Bay and established lasting protections for the region. The 404(c) process was initiated by the Obama-Biden administration in 2014, and thrown out by the Trump administration in 2019 before protections were finalized. Today’s announcement is the first step in allowing EPA to get back to work on lasting protections for Bristol Bay’s world-class fishery and all it sustains, and comes as a result of the Ninth Circuit Court of Appeals case Trout Unlimited et. al. v. Pirzadeh et. al, reflecting the agency’s acknowledgment that its prior withdrawal of proposed Bristol Bay protections did not meet the standard set by the court.
“This announcement is a historic step forward in the long fight to protect Bristol Bay, our fishery, and our people,” said Robert Heyano, President of United Tribes of Bristol Bay. “The fifteen federally recognized Tribes of the United Tribes of Bristol Bay who call this region home, have worked for decades to protect our pristine watershed that sustains our sacred indigenous way of life. Today, we applaud Administrator Regan for reinstating the process to consider protections for Bristol Bay and for respecting tribal sovereignty. The people of Bristol Bay are counting on the EPA to listen to the science and finish the job of protecting our lands and waters.”
Today’s filing is consistent with calls from Tribes and other Bristol Bay communities to reverse the Trump administration’s 2019 decision to throw out the protections in the proposed determination and halt the 404(c) process. The 2019 decision was arbitrary, not based on science, and flew in the face of longstanding requests by Tribes and others for permanent protections for Bristol Bay’s headwaters.
“This is a pivotal moment for Bristol Bay fishermen. Our decades-long, locally-led effort to permanently protect Bristol Bay, our thriving commercial fishery, and our communities from the Pebble Mine is finally back on track,” said Katherine Carscallen, Executive Director of Commercial Fishermen for Bristol Bay. “While we are celebrating today, the last four years have taught us that Bristol Bay is not safe from the Pebble Mine until the EPA completes the Clean Water Act Section 404(c) process. The Biden administration has an opportunity and a responsibility to truly finish the job that the EPA started in 2014 and complete the 404(c) process so that Bristol Bay’s fishermen, businesses, and communities are no longer threatened by the Pebble Mine.”
“It’s clear today that EPA is listening,” said Joel Reynolds, senior attorney and western director for the Natural Resources Defense Council. “Tribal, business and, community leaders, along with millions of supporters, have been fighting the destructive Pebble Mine for more than a decade, urging the agency to save this national treasure. This decision will restart an in-depth agency process, and we’ll be fighting every step of the way to permanently protect the world’s greatest wild salmon fishery and the homeland of the Yup’ik, Dena’ina, and Alutiiq peoples.”
The Biden administration’s decision will eventually reopen the 404(c) process, but the shape that process takes will determine whether or not Bristol Bay is fully protected from dangerous mining. Moving forward, the coalition of business, tribal, nonprofit, and community organizations in the Bristol Bay Defense Fund are eager to work with EPA throughout the process to finish the job. To permanently protect this special place, the EPA must take steps to protect the headwaters of Bristol Bay from large-scale mining, as Pebble Mine is not the only threat — it is simply the most immediate.
EPA’s action comes just over one year since then-candidate Biden committed to do “what President Trump has failed to do: listen to the scientists and experts to protect Bristol Bay — and all it offers to Alaska, our country, and the world.”
The Bristol Bay Defense Fund and partners, lead by United Tribes of Bristol Bay, has urged the administration to “Finish the Job,” throughout this summer, and the agency’s announcement comes after letters and ads requesting action from stakeholders across the political spectrum, including Tribes, sport and commercial fishermen, conservationists, and others. The 404(c) ‘veto’ is a critical part of the strategy to provide permanent protection that also includes the goal of Congressional legislation to further codify protections of this special place.
The Tribal-led fight to protect Bristol Bay began more than a decade ago in response to the proposed Pebble Mine located at the Bay’s headwaters. Pebble Mine would be the largest open-pit mine in North America, producing more than 10 billion tons of toxic waste that will remain there forever. As reported in the New York Times, Bristol Bay is a bright spot amid devastatingly low catches in other salmon communities. But even the catch in Bristol Bay is at risk from the dangerous Pebble Mine. Northern Dynasty Minerals CEO Ron Thiessen — the head of the company behind the Pebble Mine proposal — recently said “we have by no means given up on this project” amid bipartisan public opposition. EPA’s action provides hope that this threat will not loom over the region indefinitely. This time, however, the job must be finished.
Trout Unlimited, Alaska, which earlier this year announced its intention to sue the EPA:
ANCHORAGE, Alaska—Today, the U.S. Environmental Protection Agency (EPA) announced that it would move to vacate its 2019 decision to withdraw proposed protections for Bristol Bay and reinstate the agency’s earlier 2014 Proposed Determination. These proposed protections would limit the amount of waste
water and mine waste discharge that could be released in to Waters of the United States in the Bristol Bay region. The announcement comes in the wake of a lawsuit brought by Trout Unlimited against the withdrawal decision and recent ruling in favor of TU by the Ninth Circuit Court of Appeals. TU looks forward to working with the EPA to finalize these protections, which are critical to protecting Bristol Bay’s world-class fisheries.“This is a smart and significant step toward putting more durable safeguards in place for Bristol Bay’s fish, clean water, communities and businesses,” said Nelli Williams, Alaska director for Trout Unlimited. “This is an important layer of protection that makes it much more difficult for the Pebble Partnership, or any other companies in the future, to mine the Pebble ore deposit. Now is the time to get these much-needed protections across the finish line, and we look forward to working with EPA and Congress to get it done. Let’s put the Pebble mine proposal in the review mirror for good so we can focus on a bright, prosperous and fish-filled future for Bristol Bay.”
“Today’s announcement by the EPA represents a victory for common sense. Blocking industrial-scale mining from Bristol Bay is the right thing to do for the Alaska Native Peoples who have depended on the fishery for millennia,” said Chris Wood, president and CEO of Trout Unlimited. “It is the right thing to do for the 17,000 family wage jobs that the $1.6 billion commercial fishery provides. It is the right thing to for a place that provides half of all of the world’s wild sockeye salmon. Congratulations to the EPA for making the right call and to the thousands of people who fought tirelessly to protect Bristol Bay.”
In 2019, the EPA under the previous administration moved to withdraw the 2014 Proposed Determination for Bristol Bay—a sudden decision based on politics, not the robust scientific record demonstrating the potential for unacceptable adverse effects. Trout Unlimited sued, challenging the EPA’
‘s decision as arbitrary and capricious and contrary to the Clean Water Act’s governing standard. In July 2021, the Ninth Circuit Court of Appeals ruled in favor of TU, finding that the EPA could withdraw a proposed determination only if the discharge of materials would be unlikely to have an “unacceptable adverse effect.” Today’s decision by the EPA recognizes that the agency could not meet,that stringent standard, and fully vindicates TU’s legal challenge. TU looks forward to vigorous engagement in the 404(c) process to ensure that strong and lasting protections are established for Bristol Bay.In November 2020, the U.S. Army Corps of Engineers denied a key federal permit for the proposed Pebble mine, concluding that the project could not comply with Clean Water Act standards and that the mine would be “contrary to public interest.” In the wake of that decision, Bristol Bay Tribes, business owners, sport anglers and hunters, tourism operators, commercial fishermen, and thousands of advocates from across the country have called on the Biden Administration to establish permanent safeguards for the southwest region of Alaska.
As wild salmon populations decline globally, Bristol Bay’s prolific wild salmon runs and the economies they support make it a place of international importance. This summer, over 65 million sockeye salmon returned to Bristol Bay, making it a record-breaking year for the world’s largest sockeye fishery. Healthy salmon runs underpin the Bristol Bay region’s economic, social, cultural and ecological well-being. More than 30 Alaska Native Tribes in the region depend on salmon to support traditional subsistence ways of life.
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Trout Unlimited, the nation’s oldest and largest coldwater fisheries conservation organization, is dedicated to caring for and recovering America’s rivers and streams, so our children can experience the joy of wild and native trout and salmon. Across the country, TU brings to bear local, regional, and national grassroots organizing, durable partnerships, science-backed policy muscle, and legal firepower on behalf of trout and salmon fisheries, healthy waters and vibrant communities. In Alaska, we work with sportsmen and women to ensure the state’s trout and salmon resources remain healthy far into the future through our local chapters and offices in Anchorage and Juneau.
The Natural Resources Defense Council:
WASHINGTON (Sept. 9, 2021) – The Environmental Protection Agency (EPA) announced that it will ask a federal court to allow the agency to vacate its own prior decision to lift safeguards against Pebble Mine, the massive open-pit gold and copper mine proposed for construction at the headwaters of Bristol Bay, in southwestern Alaska.
EPA’s decision to request a “remand with vacatur”—is an explicit acknowledgement that its own withdrawal of protections for Bristol Bay during the prior administration was unlawful. Vacating EPA’s earlier action will effectively reinstate a 2014 “proposed determination” by the EPA under section 404(c) of the Clean Water Act that would, if completed, permanently protect Bristol Bay, the world’s most productive wild salmon fishery, from large-scale mining.
The following is a statement from Joel Reynolds, senior attorney and western director for NRDC (the Natural Resources Defense Council):
“It’s clear today that EPA is listening. Tribal, business and community leaders, along with millions of supporters, have been fighting the destructive Pebble Mine for more than a decade, urging the agency to save this national treasure. This decision will restart an in-depth agency process, and we’ll be fighting every step of the way to permanently protect the world’s greatest wild salmon fishery and the homeland of the Yup’ik, Dena’ina, and Alutiiq peoples.”
BACKGROUND
The Obama-Biden administration initiated the EPA 404(c) process in 2010, in response to a petition by six Bristol Bay tribes. After a three year scientific risk assessment, the agency proposed safeguards in 2014. But the Trump administration, in 2017, abruptly halted and reversed the process before finalizing protections, without regard to science or even consulting the agency’s own technical staff, and in 2019 withdrew the process entirely.
Bristol Bay’s salmon fishery generates $2.2 billion in annual revenue and 15,000 jobs. In 2021, the salmon run totaled over 65 million fish.Salmon have sustained the subsistence culture of Alaska Natives for millennia.
Northern Dynasty Minerals, the mining conglomerate that has seen plenty of bad news ever since the U.S. Army of Corps of Engineers temporarily approved the company’s Pebble Limited Partnership’s Pebble Mine plan, also released a statement today lauding the project’s economic impact if its mining operation proceeds:
September 9, 2021 Vancouver – Northern Dynasty Minerals Ltd. (TSX: NDM; NYSE American: NAK) (“Northern Dynasty” or the “Company”) is pleased to announce the results of a 2021 Preliminary Economic Assessment (“2021 PEA”) providing updated production, financial and cost estimates for its proposed Pebble Project (the “Proposed Project”) in Southwest Alaska as described in the Pebble Project permit application and its amendments, which recently underwent a comprehensive review by the U.S. Army Corps of Engineers (“USACE”) culminating in their publishing of a Final Environmental Impact Statement (“EIS”). In addition to the Proposed Project, the 2021 PEA examines three potential mine expansion scenarios, and potential alternative strategies for gold recovery that could form the basis for future permit applications and review. U.S. dollars and U.S. standard units are used unless otherwise indicated. All results are post-tax.
The currently proposed project detailed in the 2021 PEA is the Proposed Project, and is consistent with the Project Description in the Pebble EIS, published by the USACE in July 2020. It does not include an onsite gold plant. With the exception of the Proposed Project, all development alternatives evaluated in the 2021 PEA are presented to demonstrate the optionality inherent in the polymetallic Pebble deposit by presenting a broad range of potential pathways for future mine development. The 2021 PEA also models other options for potential development in the future, to show how the project life could be extended and metal production enhanced through an expansion at different points in time or via alternative treatment scenarios. Neither Northern Dynasty nor the Pebble Partnership has proposed or intends to propose any of these development alternatives in the near-term for regulatory approval. Any future development options beyond the Proposed Project would require extensive federal, state and local permitting processes and approvals before proceeding, which would be in addition to the initial permits and approvals required for the Proposed Project.
Summary of Key Projected Results
Proposed Project:
o 20 years of open pit mining with a processing rate of 180,000 tons per day (“Tpd”)
o At forecast long-term2 metal prices, Internal Rate of Return (“IRR”) of 15.8% and Net Present Value at 7% discount rate (“NPV7”) of $2.3 billion
o At prevailing3 metal prices, IRR of 23.8% and NPV7 of $4.8 billion
o Life-of-mine (“LOM”) metal production for this scenario: 6.4 billion lb copper; 7.3 million oz gold; 300 million lb molybdenum; 37 million oz silver; and 230,000 kg rheniumo Average annual metal production: 320 million lb copper; 363,000 oz gold; 15 million lb molybdenum; 1.8 million oz silver and 12,000 kg rhenium
Expansion Scenarios:
o 90 to 101 year mine life with a peak processing rate of up to 270,000 Tpd
o At forecast long-term metal prices, IRR of 18.2% to 21.5% and NPV7 of $5.8 to $8.5 billion
UPDATE: Here’s another statement from Commercial Fishermen for Bristol Bay:
DILLINGHAM, ALASKA — Today, commercial fishermen celebrated alongside Bristol Bay Tribes and residents as the U.S. Environmental Protection Agency (EPA) announcedthat it would not defend the Trump administration’s 2019 decision to withdraw proposed protections for Bristol Bay, Alaska. Instead, the EPA will ask the district court to vacate the previous decision and remand the case back to EPA to reinstate the previous Section 404(c) protections that EPA proposed in 2014.
If finalized, the EPA’s proposed protections would block large-scale mining activity in Bristol Bay’s headwaters, including the Pebble Mine which has threatened the Bristol Bay watershed for over two decades. EPA Administrator Michael S. Regan recognized the value of Bristol Bay and reinforced EPA’s commitment to see it protected stating;
“The Bristol Bay Watershed is an Alaskan treasure that underscores the critical value of clean water in America. Today’s announcement reinforces once again EPA’s commitment to making science-based decisions to protect our natural environment. What’s at stake is preventing pollution that would disproportionately impact Alaska Natives, and protecting a sustainable future for the most productive salmon fishery in North America.”
“This is a pivotal moment for Bristol Bay fishermen. Our decades-long, locally-led effort to permanently protect Bristol Bay, our thriving commercial fishery, and our communities from the Pebble Mine is finally back on track,” said Katherine Carscallen, Executive Director of Commercial Fishermen for Bristol Bay. “While we are celebrating today, the last four years have taught us that Bristol Bay is not safe from the Pebble Mine until the EPA completes the Clean Water Act Section 404(c) process. The Biden administration has an opportunity and a responsibility to truly finish the job that the EPA started in 2014 and complete the 404(c) process so that Bristol Bay’s fishermen, businesses, and communities can resume our lives free from the threat of the Pebble Mine.”
“After over a decade of fighting to save our fishery and our jobs, we are thankful today for EPA’s renewed action to protect Bristol Bay and the 15,000 American jobs and small businesses like mine,” said John Fairbanks, a Washington-based Bristol Bay commercial fisherman. “As Bristol Bay just wrapped up an all time record breaking run, delivering 65 million salmon to our rivers, streams, fishing nets and onto tables all over the nation, we remain hopeful President Biden will see through his commitment to stand by the science and protect these irreplaceable salmon.”
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Commercial Fishermen for Bristol Bay is a national coalition of fishermen working to protect Bristol Bay, Alaska and the 15,000 jobs, $500 million in annual income, and $2.2 billion in economic activity that Bristol Bay’s wild salmon provide.
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