The Environmental Protection Agency announced Thursday that it intends to revise a proposed determination under the Clean Water Act that could permanently block development of the Pebble deposit, upstream from Bristol Bay.
But mine opponents are frustrated at the slow pace.
Section 404-c of the Clean Water Act allows the EPA to restrict the disposal of dredged or fill material in an area — or deny it altogether. It’s referred to as EPA’s veto power over wetlands permits.
EPA Region 10 acting administrator Michelle Pirzadeh sent a letter to the Army Corps of Engineers, the chief executive of Pebble Limited Partnership, the state Department of Natural Resources, and Chuchuna Minerals Company announcing the plan to revise the proposed determination. She said the EPA still has reason to believe that the discharge of materials from the proposed mine could lead to “unacceptable adverse effects on important fishery areas.”
But Alannah Hurley, executive director of United Tribes of Bristol Bay, said this announcement is a disappointment, because it delays permanent protections for the region.
“Our Tribes put in a petition, literally 12 years ago in 2010,” she said. “And instead of progressing to the next step, we are taking a step backward.”
The EPA initially said it would issue a recommended determination by May 31, 2022. Revising the proposed determination prolongs that timeline. Hurley is also disappointed that the Biden administration hasn’t honored its commitment to consult with Tribes during this process.
“We have actually been requesting Tribal consultation since this fall, about how this process should move forward and what that should look like in terms of public engagement and Tribal consultation,” Hurley said. “Today’s announcement was made without the type of consultation, which contributes to our disappointment.”
Pebble spokesman Mike Heatwole said in an email, “We have received the letter from the EPA and are reviewing it to determine our next steps.”
Here’s how Section 404-C works. If the EPA regional administrator isn’t satisfied that a project won’t produce “unacceptable adverse effects” it publishes a proposed determination, which begins the process of exploring whether the project will result in unacceptable harm. Then, the regional administrator either recommends or withdraws the proposed determination. Once the administrator makes that recommendation, the EPA gives the Army Corps and project applicant 15 days to take corrective action. Lastly, the administrator takes final action on the recommendation and publishes the final determination in the federal register.
Pebble, the Army Corps, the Department of Natural Resources and others have until Feb. 11 to submit information demonstrating that the project won’t unduly harm the watershed, although EPA said it could provide more time if requested.
The EPA originally proposed a “preemptive veto” in 2014, before Pebble applied for a permit. The Trump administration’s EPA withdrew it in 2019. Then, last September, the EPA announced that it would re-start the proposed determination process, which could end with a veto of the mine permits.
The EPA has issued vetoes just 13 times in the 50 years of the Clean Water Act, when a major project would have “significant impacts on some of America’s most ecologically valuable waters.”
The EPA says it will issue its revised proposed determination by May 31.