A federal court ruling reopens a path to permanent protections for Bristol Bay's headwaters

Nov 2, 2021

A U.S. District Court ruling reverses a 2019 decision by the Trump Administration, which withdrew the EPA’s 2014 proposal for protections. This restarts the 404c Clean Water Act process.

Taryn Kiekow Heimer, Marine Mammal Project (top left) Sam Snyder, Wild Salmon Center (top right) Katherine Carscallen, Commercial Fishermen, for Bristol Bay (bottom left) Alannah Hurley, United Tribes of Bristol Bay (bottom right) all met to discuss the future for protections after the federal court ruling. 11/01/2021
Credit Bristol Bay Defense Fund

 

  

Tribal leaders, commercial fishermen and environmental advocates are celebrating a federal court decision that could provide future protections for Bristol Bay against projects like Pebble Mine.

A digital simulation of what the proposed Pebble Mine's foundation could have looked like if it received a permit.
Credit U.S Army Corps of Engineers

A U.S. District Court ruling Friday allowed the Environmental Protection Agency to officially restart a process to consider permanent protections for Bristol Bay. That reverses a 2019 decision by the Trump Administration, which withdrew the EPA’s 2014 proposal for protections.

Members of the Bristol Bay Defense Fund applauded the court’s decision in a virtual press conference Monday, Nov. 1.

Deputy Director of the Marine Mammal Protection Project Taryn Kiekow Heimer said that the court’s ruling is a step closer to permanent protections.

“The judge’s decision to vacate and remand will reinstate the 2014 proposed determination," Heimer said. "And so that kicks us back into the 404c administrative process. When and if the EPA finalizes that it would stop Pebble Mine for good and permanently protect Bristol Bay”

In 2014 the Environmental Protection Agency proposed a “preemptive veto” of a larger mine in the area under section 404c, based on the agency’s Bristol Bay Watershed Assessment. But it was never finalized, and the Trump Administration withdrew the proposal 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.

Alannah Hurley is the Executive Director of the United Tribes of Bristol Bay, a group of 15 federally recognized Tribes in the region. Hurley says they are looking forward to working with the EPA to finalize the protections.

“We are still very much under threat with the Pebble Mine and mines like it in Bristol Bay," Hurley said.  "Our Tribes are not going to rest until these protections are finalized and Bristol Bay is protected for future generations.”

The group would like to see the EPA make a decision before next summer. Director Katherine Carscallen of Commercial Fishermen for Bristol Bay says the EPA has a commitment to follow science and the law when making this decision.

“And that work has already been done," Carscallen said. "The agency has already taken years of study and the scientific record is clear and overwhelming. Bristol Bay’s Tribes and fishermen have spent decades fighting to protect our way of life and livelihoods. And it’s time for the EPA to finish the job for good and apply the Clean Water Act to veto the Pebble Mine before next fishing season.”

In 2020, the Army Corps of Engineers 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 groups are also calling for Congressional action that would further protect Bristol Bay’s headwaters.

The EPA filed the motion to vacate and remand the Trump administration's withdrawal in September. The agency must lay out a schedule according to 40 CFR Part 231 of the Clean Water Act before it issues a final determination. That process could last up to four months.

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