EPA invokes Clean Water Act in a step toward permanent protections for Bristol Bay

Sep 9, 2021

The announcement is the latest development in a policy flip-flop between presidential administrations that spans years. If finalized this time, it would provide long-term protections to the Bristol Bay waters. 

EPA officials hold an impromptu town hall in Dillingham's boat yard on June 14, 2019, shortly before the agency withdrew its proposed preemtive veto of the mine.
Credit Alex Hager/KDLG

 

The Environmental Protection Agency announced Thursday that it will restart a process that could block the proposed Pebble Mine permanently. 

 

If built, the controversial open-pit copper and gold mine would be one of the largest in North America, at the headwaters of Bristol Bay, upstream from the world's largest sockeye salmon run. 

The EPA said in a court filing Thursday it will reinstate a tool of the Clean Water Act to consider restricting mining in the region. 

The mechanism is Section 404(c) of the Clean Water Act, which allows the EPA to restrict the disposal of dredged or fill material in an area -- or deny it altogether. The process is called a “proposed determination” but is sometimes referred to as an administrative, or preemptive, veto.

The decision came in response to a lawsuit filed by opponents of the mine. 

Alannah Hurley is the executive director of the United Tribes of Bristol Bay, a coalition of 15 Bristol Bay Tribes. She said the news is overwhelming.

 

“This is something that our Tribes have been fighting for for almost two decades now. So to know that we are getting back on the right track to finalize protections in this process is just a -- a historic moment for Bristol Bay,” she said.

It’s the latest development in a policy flip-flop between presidential administrations that spans years. 

The EPA, under the Obama administration, originally proposed a “preemptive veto” in 2014, before Pebble submitted its permit application. But that decision was never finalized, and the Trump administration’s EPA withdrew it in 2019. 

The Ninth Circuit Court of Appeals ruled this summer that the EPA can only withdraw a proposed determination if it is unlikely that the discharge of materials would have an “unacceptable adverse effect.” The EPA now says the 2019 withdrawal did not meet that standard.

The agency's latest decision starts the process again. If finalized this time, it would provide long-term protections to the Bristol Bay waters. 

Hurley said UTBB wants to focus on updating and strengthening the protections. 

Tribes in the region called for the EPA to use its authority under the Clean Water Act to prohibit mining in the region more than a decade ago. That went further than the agency's preemtive veto in 2014, which only restricted certain development.

 

“We really feel like the information that’s come out of the permitting process and everything that’s happened in the last seven years really warrants a broader application of those 404(c) protections -- specifically trying to protect the headwaters section of Bristol Bay,” she said.

While Hurley called this is a “monumental moment,” it isn’t the end. 

If the court grants the motion to restart the EPA’s review, the agency will announce a schedule to resume the process, including opportunities for public input. 

Gov. Mike Dunleavy said in a news conference Thursday afternoon that the EPA’s decision was “undoing” the work of the Trump administration. 

 

“Preemptive vetoes of any type, for any project, of any permit, by any company is dangerous, and will be opposed by the state because of the precedents that will set,” he said. 

 

Dunleavy said those precedents would be problematic for other resource development in the state. 

 

The EPA has issued final determinations under the veto process 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.”

 

Dunleavy criticized the Biden administration's recent moves to protect areas of the state, like the Tongass, and praised the Trump administration’s approach to resource extraction. 

 

But the Pebble project faced major setbacks even under former President Trump. Last year, the Army Corps denied a permit for Pebble after determining that the plan for the mine would not comply with the Clean Water Act, and that the project is not in the public interest.

 

The Army Corps is currently reviewing Pebble’s appeal of that decision. 

 

This is a developing story. Check back for updates.

Contact the author at izzy@kdlg.org or 907-842-2200.