EPA Announces Revised Clean Water Act Determination

A map of the Bristol Bay watershed, which the proposed Pebble Mine project would abut. Image: U.S. Environmental Protection Agency.

The Environmental Protection Agency (EPA) has proposed restrictions under the Clean Water Act that would prohibit disposal of mine wastes from the Pebble deposit into the Bristol Bay watershed, a potentially huge roadblock for a proposed copper, gold and molybdenum mine.

EPA Region 10’s May 26 announcement came as hundreds of commercial fishermen were gearing up for what was forecast by the Alaska Department of Fish and Game as a very robust season, with more than 73 million sockeye salmon expected to return to the world’s largest wild sockeye fishery.

If approved, the revised proposed determination would protect Alaska’s Bristol Bay watershed from potential adverse environmental impacts of mining ventures on salmon habitat.

The proposed restrictions, under the Clean Water Act Section 404(c) Proposed Determination, would prohibit use of certain waters in the Bristol Bay watershed as disposal sites for the discharge of dredged or fill material associated with mining the Pebble Deposit, including the South and North Forks of the Koktuli River and Upper Talarik Creek watersheds.

If finalized, the EPA said, Section 404(c) determination would help protect the Bristol Bay watershed’s rivers, streams and wetlands that support the world’s largest sockeye salmon fishery and a subsistence-based way of life that has sustained Alaska Native communities for millennia.

The EPA hearings took place in Dillingham, Alaska on June 16, Newhalen, Alaska on June 17, and via an online webinar on June 16. The agency also accepted written comments through July 5.

EPA Administrator Michael S. Regan heralded the Bristol Bay watershed as “a shining example of how our nation’s waters are essential to healthy communities, vibrant ecosystems and a thriving economy.”

“EPA is committed to following the science, the law and a transparent public process to determine what is needed to ensure that this irreplaceable and invaluable resource is protected for current and future generations,” Regan said.

Casey Sixkiller, regional administrator for EPA Region 10 in Seattle, noted that Bristol Bay supports one of the world’s most important salmon fisheries.

“Two decades of scientific study show us that mining the Pebble Deposit would cause permanent damage to an ecosystem that supports a renewable economic powerhouse and has sustained fishing cultures since time immemorial,” Sixkiller said. “Clearly, Bristol Bay and the thousands of people who rely on it deserve the highest level of protection.”  

Senators Lisa Murkowski and Dan Sullivan, both R-Alaska, released a joint statement citing their opposition to the Pebble mine. Alaska Gov. Mike Dunleavy, though, called the Biden Administration’s new effort to block the Pebble mine a threat to the state’s entire mining industry.

“Mining provides some of the best paying jobs in the state,” Dunleavy said. “Jobs that have never been needed more for Alaskan families to survive record price hikes in food and gas prices under Biden Administration policies. EPA’s action could very well become the template for stopping future mines in Alaska and across the country. Alaska will not be bullied by Washington D.C. bureaucrats.” 

John Shively, chief executive officer for the Pebble Partnership, said the EPA’s action was “clearly a giant step backwards for the Biden Administration’s climate-change goals. I find it ironic that the President is using the Defense Production Act to get more renewable energy minerals such as copper into production while others in the administration seek political ways to stop domestic mining projects such as ours,” he said.

“As we are still actively working through the established permitting process via our appeal of the Army Corps of Engineers permit denial, we oppose any action that is outside of that process,” Shively added. “This preemptive effort is clearly a political maneuver to attempt to block our ability to work through that established process. Further, the Army Corps of Engineers published an Environmental Impact Statement for Pebble in 2020 with input from many agencies including the EPA that states that the project can be done without harm to the region’s fisheries.” 

Katherine Carscallen, director of Commercial Fishermen for Bristol Bay, and Andy Wink, executive director of the Bristol Bay Regional Seafood Development Association, meanwhile hailed the EPA’s Clean Water Act Section 404(c) Proposed Determination as critical for the Bay’s salmon habitat.

“With a predicted record-breaking fishing season kicking off shortly, it couldn’t be more clear what is at stake if Pebble Mine were built: thousands of jobs, a sustainable economy and an irreplaceable way of life are all on the line,” Carscallen said.

“We’re glad to see that the EPA is following the science and taking steps to protect Bristol Bay’s wild salmon fishery,” added Wink. “Our industry has been operating with the Pebble Mine hanging over us for far too long.”

“This threat has created tremendous uncertainty and risk for our fishermen and seafood processors who have invested hundreds of millions of dollars into fishing boats, fishing permits and processing plants,” he said. “We look forward to the EPA completing its 404(c) process as quickly as possible so that our industry can focus on harvesting and supplying the world with Bristol Bay sockeye.”

Proponents and opponents of the mine converged on Dillingham and Newhalen in Southwest Alaska to testify in mid-June, plus also testified virtually as several thousand fishermen and seafood processing workers headed for the Bay, ready to harvest and process the millions of red salmon forecast for 2022 by the Alaska Department of Fish and Game.

Dozens of mine opponents turned out at the Dillingham hearing to testify on the revised proposed determination regarding a Clean Water Act permit. Mine boosters, including the Pebble Partnership’s Shively, testified at Newhalen, contending that such action would block the project and any future projects at that site, a step they see as a violation of the Alaska Statehood Act and the Alaska National interest Lands Conservation Act of 1980.

“The people of Bristol Bay have been clear for decades (that) the EPA must protect our lands and waters for future generations,” said Alannah Hurley executive director of United Tribes of Bristol Bay, whose members include a number of commercial fishermen. “No version of Pebble belongs in Bristol Bay’s headwaters, and EPA’s action needs to stop this toxic project once and for all and these protections must be finalized this year.”

The Pebble Partnership has asked the EPA to extend the comment period so that it can prepare detailed technical and legal comments about many issues the mining company see with the revised proposed determination. The Partnership contends that there are deficiencies in the proposed document and the process, including that it fails to include anything about the economic contribution the mine could bring to the area.

“The EPA’s document is full of speculation, innuendo and light on facts,” the organization stated. “(I)t is worth noting that what the EPA proposes to do is to preemptively block any development on 309 square miles of state of Alaska land, land specifically selected by the state for its mineral potential.”

Bristol Bay commercial and subsistence harvesters, tribal entities and sport lodge owners provided a different perspective.

“The Bristol Bay fishery is the largest red salmon run in the world,” veteran harvester Mark Niver told the EPA at the Dillingham hearing. “This year we’re gonna top over 70 million salmon, and this will continue if we just leave the watershed alone.”

“You have an important decision to make,” Anu Wysocki of the Koleganek Village Council told the EPA. “We want you to focus on traditional knowledge besides science and how we have coexisted with our environment for thousands of years. Our way of life, clean water, salmon and environment is priceless.”

“Science shows that the entire waters of our watershed needs to be protected,” Wysocki added.

Bear Trial Lodge owner Nanci Morris Lyon testified on the economic benefits of the red salmon fishery in Bristol Bay, saying that her business is one of nearly 100 lodges and outfitters that generate $155 million in economic output every year, and that she hires guides and other staff locally.

“I’ve raised my family in Bristol Bay,” she said.  “They would like to take over and continue to own and operate my lodge as a family business. If Pebble mine goes forward I cannot in good conscience pass my lodge along to my kids because I know it will not succeed for them in that environment.”