The Environmental Protection Agency’s plan to bar the controversial Pebble Mine from the Bristol Bay watershed, announced on May 26, may seem like déjà vu.
But the new plan differs in some significant ways from the Obama administration’s 2014 proposal to invoke the rarely used Section 404(c) provision of the Clean Water Act to prevent permitting of the giant proposed copper and gold mine, said Bristol Bay-area opponents of the project.
The Pebble Limited Partnership’s mining plan can no longer be considered a hypothetical, a point of criticism in 2014, said Dan Cheyette, vice president for lands and resources with the Bristol Bay Native Corp., one of the organizations represented at an online news conference. Nor can the EPA’s plan be considered a preemptive action, another criticism of the 2014 proposal, Cheyette said at the news conference.
“The action that EPA is taking is based on PLP’s actual mine proposal that they went into permitting with. By the same token, that means that EPA is no longer acting preemptively. There is a live plan, mining plan, before it,” he said.
The proposed EPA action is specific to Pebble’s plan, citing the miles of streams and wetlands that would be disturbed under it. No project that would do any of four specific impacts would be allowed to get a wetlands-fill permit, Cheyette said. Those are: the destruction of more than 8.5 miles of streams where fish spawn, known as anadromous streams; losses of 91.2 miles of non-anadromous streams; losses of 2,113 acres or wetlands or ponds; and changes or alterations to more than 20% of average monthly streamflow on more than 29 miles of anadromous streams.
To Bristol Bay Native Corp. and other Bristol Bay Native and fishing organizations opposing the mine, that means that EPA’s Section 404(c) determination is only a start, representatives said Wednesday. Additional protections could come through congressional action or conservation easements or similar land designations, they said.
“We all know that as long as that resource is in the ground, no matter what type of action you take to protect it, somebody will always be trying to unravel it, thinking they can make a dollar off of it,” said Russell Nelson, Bristol Bay Native Corp.’s board chairman.
“We don’t save Mount Denali by just saving the tip of the mountain. We save the whole mountain,” said Tom Tilden, a United Tribes of Bristol Bay board member. “We need to save all of Bristol Bay, the whole watershed, all the way from the north to the south.”
The Pebble Limited Partnership, which sued the Obama administration EPA to block its Section 404(c) determination, disagrees with Cheyette’s interpretations.
The company’s permit application, denied in 2020 by the U.S. Army Corps of Engineers, is under appeal. That makes the proposed EPA action premature, said Mike Heatwole, vice president of public affairs for the Pebble Limited Partnership.
“It remains a preemptive action in that no permit has been approved by the USACE and that process is not yet final. The normal course for a 404c action by the EPA is after a permit has been approved by the USACE. Additionally, as the EPA is seeking action beyond just our project and to future projects in the area it is clearly a preemptive veto of future activities on 390 square miles of state of Alaska land,” Heatwole said by email.
Alaska’s two U.S. senators also oppose the Section 404(c) determination and characterize it as preemptive, even though they have announced opposition to Pebble.
While the determination is one way to block the mine, “there is no guarantee that a future administration will not revoke it, and most Alaskans, myself included, have never supported a blanket, preemptive approach for any project,” Sen. Lisa Murkowski said in a May 26 statement. “My concern has always been that this could be used as precedent to target resource development projects across our state.”
Yereth Rosen came to Alaska in 1987 to work for the Anchorage Times. She has been reporting on Alaska news ever since, covering stories ranging from oil spills to sled-dog races. She has reported for Reuters, for the Alaska Dispatch News, for Arctic Today and for other organizations. This article originally appeared online at alaskabeacon.com. Alaska Beacon, an affiliate of States Newsroom, is an independent, nonpartisan news organization focused on connecting Alaskans to their state government.
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