EPA finalizes decision, blocks Pebble mine

In what could be the most consequential "pollice verso" for Alaska, in a time when the federal government is seeking to shift the paradigm from more than a century of petroleum dependency to clean renewable energy, the Environmental Protection Agency issued its final determination under the Clean Water Act to help protect Bristol Bay, invariably crippling the more than two decades of effort toward establishing a mine at the world-class copper-gold-molybdenum-silver-rhenium Pebble project in Southwest Alaska.

Issuing its final 404(c) preemptive veto on 309 square miles of state-owned land in the Bristol Bay area, the EPA has imposed a blanket prohibition on development and has ultimately usurped Alaska's autonomous rights within its borders.

According to the EPA, after an extensive review of scientific and technical research spanning two decades, it had determined that certain discharges associated with developing a mine at the Pebble deposit would have unacceptable adverse effects on certain salmon fishery areas in the Bristol Bay watershed.

"The Bristol Bay watershed is a vital economic driver, providing jobs, sustenance, and significant ecological and cultural value to the region," said Environmental Protection Agency Administrator Michael Regan. "With this action, EPA is advancing its commitment to help protect this one-of-a-kind ecosystem, safeguard an essential Alaskan industry, and preserve the way of life for more than two dozen Alaska Native villages."

Outlined in its announcement, the agency says it has determined that the large-scale loss of, and damage to, headwater streams, wetlands, and other aquatic resources that support salmon populations in the South Fork Koktuli, North Fork Koktuli, and Upper Talarik Creek watersheds from the discharge of dredged or fill material for the construction and routine operation of the mine plan described in Pebble's Clean Water Act Section 404 permit application, as well as future proposals that would have the same, similar, or greater levels of aquatic resource loss or damage that will have unacceptable adverse effects on anadromous (migratory) fishery areas in these watersheds.

According to EPA, discharges of dredged or fill material to construct and operate the proposed mine site alone would result in the loss of approximately:

• 8.5 miles (13.7 kilometers) of anadromous fish streams.

• 91 miles (147 kilometers) of additional streams that support anadromous fish streams.

• 2,108 acres (8.5 square kilometers) of wetlands and other waters in the SFK and NFK watersheds that support anadromous fish streams.

Furthermore, EPA states that these discharges would also result in streamflow alterations that would adversely affect approximately 29 miles (46.7 kilometers) of additional anadromous fish streams downstream of the mine site due to greater than 20% changes in average monthly streamflow.

Alaska fires back

Helming Alaskan natural resource rights, Alaska Gov. Mike Dunleavy issued a statement in response to this precedent-setting decision.

"EPA's veto sets a dangerous precedent," said Dunleavy. "Alarmingly, it lays the foundation to stop any development project, mining or non-mining, in any area of Alaska with wetlands and fish-bearing streams. My administration will stand up for the rights of Alaskans, Alaska property owners, and Alaska's future."

Considering that wetland habitats comprise roughly 43.3% of the state's surface area, according to the Alaska Department of Fish and Game, this leaves the Last Frontier upon a knife's edge for any potential natural resource development and marks an even riskier position for any potential investment in the state.

The governor also noted several flaws in the veto's supporting documents. One is the veto's prematurity – project plans are still working through the established permitting process, which the Army Corps of Engineers oversees.

At this juncture, the Alaska Department of Fish and Game, the Alaska Department of Environmental Conservation, and the Alaska Department of Natural Resources have not yet weighed in through the state permitting process and 401 certification process or through state input as a landowner.

"The precedent set by this action will percolate throughout the investment community," said Alaska Department of Natural Resources Commissioner John Boyle. "EPA is violating the rights guaranteed by the Alaska Statehood Act through the capricious exercise of its authority, robbing Alaskans of a multi-billion dollar asset on State lands that were specifically selected for their mineral potential without affording the project the predictable, fair, and science-based permitting process that all projects deserve."

Responding to EPA's primary concern – protecting the fish and fish habitat in the Bristol Bay area – Alaska Department of Fish & Game Commissioner Doug Vincent-Lang said, "Alaska's Title 16 permitting process would ensure protection of fish and fish habitat in the Bristol Bay Area. But these statutory protections have been flouted by EPA, choked off before Alaska's expert habitat and fish biologists had the opportunity to weigh in."

Unlawful and unprecedented

In September, 13 states – Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Montana, Nebraska, South Carolina, Texas, Utah, West Virginia, and Wyoming – joined Alaska in a letter in opposition to EPA Region 10's proposed decision to restrict Pebble.

"Decisions like these," the states emphasized, "throw a wild card into the entire 404 process."

At the time, Alaska Attorney General Treg Taylor called the EPA's decision "legally indefensible" and indicated that his office would defend Alaska's rights in court should EPA proceed with finalization.

"The precedent set by this preemptive veto – if valid – should alarm all permit applicants, investors, and states who wish to retain their traditional land- and resource-management authority," said Taylor. "If EPA can rely on undefined terms and subjective standards not based in science to short circuit the Corps' appeals process and the State's permitting process here – it can do it anywhere."

"EPA's draconian decision – taken under a Biden Administration that so desperately wants to see domestic development of the natural resources needed to support our Nation's renewable energy goals – is dumbfounding," said Alaska Department of Environmental Conservation Commissioner Jason Brune. "This decision will drive development not only out of Alaska but out of the country, straight into third world countries where little care is given to environmental protection, environmental justice is non-existent, and child labor is exploited."

Finally, Pebble Limited Partnership CEO John Shively made the following statement regarding the EPA's decision to preemptively veto the Pebble project.

"Today's action by the EPA to preemptively veto the proposed Pebble project is unlawful and unprecedented," said Shively. "For well over a decade, we have argued that fair treatment under the rule and regulations of the U.S. should be followed for Pebble or any other development project. Unfortunately, the Biden EPA continues to ignore fair and due process in favor of politics. This preemptive action against Pebble is not supported legally, technically, or environmentally. As such, the next step will likely be to take legal action to fight this injustice.

Although no further details have been given on what actions Northern Dynasty Minerals Ltd. will take, it can be surmised that the company will contest this decision.

Given the predilection of terminating projects for land conservation, despite the obvious and fierce scrutiny such projects would undergo during permitting, it is evident that there will undoubtedly be a backlash as this move by the EPA infringes upon the Tenth Amendment of the U.S. Constitution.