Regulatory Tracker

Bristol Bay and the Pebble Mine

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Quick Take

On Jan. 30, 2023, EPA issued a final determination under Section 404(c) of the Clean Water Act that effectively blocks the Pebble Mine as currently designed. EPA bases its decision on a finding that the mine would have “unacceptable adverse effects” on salmon fishery areas in the Bristol Bay watershed.

Why it Matters

Bristol Bay watershed, located in southwestern Alaska, is home to some of the world’s largest runs of wild salmon, including its renowned sockeye salmon run. The watershed’s aquatic habitats support sport and commercial fishing, and many Alaska Natives rely on Bristol Bay to maintain a subsistence-based lifestyle.

The Pebble deposit, which contains large amounts of copper, gold, and molybdenum, is located within the Bristol Bay watershed. Pebble Limited Partnership has proposed to build a large open-pit mine at the deposit, which would result in discharges polluting the watershed.

In 2014, EPA proposed restricting the usage of certain waters as disposal sites for mining activities because of the proposed mine’s “unacceptable environmental effects” on the Bristol Bay watershed. Under President Trump, EPA withdrew that proposed determination in 2019. However, also under President Trump, the Army Corps denied Pebble’s request for a Clean Water Act (CWA) discharge permit based on the project’s “substantial environmental impacts.”

Current Status

On Dec. 1, 2022, the EPA Region 10 Administrator issued a Recommended Determination to prohibit and restrict the use of certain waters in the Bristol Bay watershed for the discharge of dredged or fill material developing the Pebble Deposit. EPA finalized that determination on Jan. 30, 2023, effectively blocking the Pebble Mine project. On July 26, Alaska filed a complaint against EPA directly with the Supreme Court, asking the Court to exercise its original jurisdiction and overturn EPA’s final determination. 

Litigation is ongoing in the District Court for the Eastern District of New York, where shareholders of Pebble Limited Partnership have alleged that the company and individual executives violated federal securities law by providing false or misleading information about the size and scope of the Pebble Mine.

Previous administrations
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Early 2000s Northern Dynasty Minerals Ltd., Pebble Limited Partnership’s parent company, purchases the mineral rights to and begins exploring the Pebble deposit.

Obama Administration
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Jan. 15, 2014 EPA Region 10 releases its final assessment of potential mining impacts on Bristol Bay, stating mining activities “would likely cause irreversible loss of significant reaches of streams that support salmon and other important species.”

Feb. 28, 2014 EPA Region 10 announces its decision to initiate a review under Section 404 of the CWA of the potential adverse environmental effects of mining the Pebble deposit. The review is the first step in issuing a proposed determination to protect the Bristol Bay watershed. On May 21, Pebble LP files a suit in the District Court for the District of Alaska, alleging EPA lacks the authority to initiate the determination process before Pebble applied for a mining discharge permit. The court dismisses the suit on Sep. 26, holding the letter could not be reviewed under the Administrative Procedure Act (APA), and the Ninth Circuit affirms on May 28, 2015. Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00097 (D. Alaska); Pebble Ltd. P’ship v. EPA et al., No. 14-35845 (9th Cir.).

July 21, 2014 EPA Region 10 publishes its proposed determination to restrict the use of certain waters in Bristol Bay as disposal sites for mining activities.

Sep. 3, 2014 Pebble files suit against EPA, alleging the agency violated the Federal Advisory Committee Act (FACA) in developing the ecological assessment for Bristol Bay. The court grants Pebble’s request for a preliminary injunction on Nov. 25, blocking EPA from taking action on its proposed determination until litigation is resolved. On Jan. 4, 2017, the court grants the parties’ joint request for a temporary stay. Under President Trump, the parties settle the case and the court dismisses the suit with prejudice on May 12, 2017. Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00171 (D. Alaska).

Oct. 14, 2014 Pebble files another suit challenging EPA’s response to Pebble’s request for documents under the Freedom of Information Act (FOIA). The court grants partial summary judgment to EPA on Aug. 24, 2015, but rules in favor of Pebble on the remaining elements on Jan. 12, 2016 and orders EPA to reevaluate the withheld documents. The court resolves Pebble’s claims on June 28 following EPA’s release of additional documents. Pebble Ltd. P’ship v. EPA, No. 3:14-cv-00199 (D. Alaska).

Trump Administration
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May 12, 2017 EPA enters into a settlement agreement with Pebble Limited Partnership to resolve the remaining litigation. The agreement requires EPA to begin the process of withdrawing the 2014 proposed determination and that Pebble file a Clean Water Act permit application for the Pebble deposit within 30 months. Pebble Ltd. P’ship v. EPA, No. 3:14-cv-00199 (D. Alaska); Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00171 (D. Alaska). EPA publishes a plan to withdraw the proposed determination on July 19, and the Army Corps acknowledges receipt of Pebble’s application on Jan. 5, 2018.

Jan. 26, 2018 EPA announces it is suspending its decision to withdraw the 2014 proposed determination, and solicits further public comment to better understand the environmental impacts of the proposed project’s impact on the Bristol Bay watershed.

March 29, 2018 The Army Corps publishes a Notice of Intent to prepare a Draft Environmental Impact Statement (DEIS) for the Pebble Project; issues the Scoping Report on Aug. 31; and releases the DEIS on Feb. 20, 2019. Environmental groups accuse the Corps of fast tracking the process, based on an unusually low number of public hearings, a truncated timeline, and other factors.

June 26, 2019 EPA General Counsel orders the Region 10 Administrator to resume consideration of whether to withdraw the 2014 proposed determination. Earlier that year, on March 22, Administrator Wheeler delegated authority to the General Counsel regarding the Pebble Deposit Area to avoid conflicts of interest. EPA withdraws the 2014 proposed determination on Aug. 30, 2019.

July 1, 2019 EPA sends two comment letters to the Army Corps. The first letter reviews the DEIS under the Clean Water Act, and finds that the project “may have substantial and unacceptable adverse impacts on fisheries resources… of national importance.” The second letter reviews the DEIS under the National Environmental Policy Act (NEPA), and states the DEIS “appears to lack certain critical information” and that the Army Corps is likely underestimating the proposed mine’s environmental impacts. The letters do not request a supplemental EIS, though EPA career staff reportedly requested a supplemental EIS in an earlier draft. The Department of the Interior (DOI) also sends a letter calling on the Army Corps to fully develop the proposed mitigation, management, and reclamation plans in the DEIS and then reassess the project’s impacts, noting “the [DEIS] is so inadequate that it precludes meaningful analysis.”

Oct. 8-9, 2019 The Bristol Bay Economic Development Corp., Trout Unlimited, and a coalition of environmental groups file suit in the District Court for the District of Alaska challenging EPA’s withdrawal of the 2014 proposed determination to restrict mining in Bristol Bay. Bristol Bay Economic Development Corporation v. Hladick, No. 3:19-cv-00265-TMB (D. Alaska); Trout Unlimited v. EPA, No. 3:19-cv-00268 (D. Alaska); SalmonState v. Hladick, No. 3:19-cv-00267 (D. Alaska). The court consolidates the cases under Docket No. 3:19-v-00265 on Oct. 13, 2019. On April 17, 2020, the District Court grants EPA’s motion to dismiss, holding that EPA’s withdrawal of the proposed determination is unreviewable under the APA as an action committed to agency discretion under the CWA. Trout Unlimited appeals the court’s decision to the Ninth Circuit on May 29, 2020. Trout Unlimited, et al v. Chris Hladick, No. 20-35504 (9th Cir.).

May 28, 2020 EPA sends a letter to the Army Corps stating EPA will not elevate the permit decision for higher-level review pursuant to the agencies’ Clean Water Act Section 404(q) Memorandum of Agreement. However, EPA also states the proposed mine could “contribute to the permanent loss of 2,292 acres of wetlands and other waters.”

July 24, 2020 The Army Corps releases the Final Environmental Impact Statement (FEIS) for the Pebble mine. Under any alternative considered, the project would permanently impact over 2,000 acres of wetlands and 100 miles of streams. The Army Corps concludes that the cumulative effects on commercial and recreational fisheries would be “minor to moderate.”

Aug. 24, 2020 The Army Corps announces that the Pebble Mine cannot be permitted as proposed and instructs Pebble to submit a compensatory mitigation plans within 90 days to offset the mine’s “unavoidable adverse impacts to aquatic resources” in Bristol Bay, affecting a total of 3,285 acres of wetlands, 364.2 acres of open waters, and 185 miles of streams. Pebble submits that mitigation plan on Nov. 4, 2020.

Nov. 25, 2020 The Army Corps denies Pebble’s request for a discharge permit under Section 404 of the CWA, finding that Pebble’s compensatory mitigation plan fails to ensure CWA compliance.

Dec. 4, 2020 Northern Dynasty Minerals Ltd. shareholders sue alleging that the company and individual executives violated federal securities law by providing false or misleading information about the size and scope of the Pebble Mine. Darish v. Northern Dynasty Minerals Ltd., No. 1:20-cv-05917 (E.D.N.Y.).

Biden Administration
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Jan. 21, 2021 Pebble files an appeal with the Army Corps regarding the agency’s decision to deny Pebble’s discharge permit. Pebble claims the denial was rushed and that the Army Corps should rely on the earlier report that found that the mine would have “no measurable effect.” The state of Alaska also announced it will appeal the denial. The Corps accepts Pebble’s request on Feb. 25.

June 17, 2021 The Ninth Circuit rules that EPA’s 2019 decision to remove restrictions on mining in Bristol Bay is subject to judicial review, and that EPA regulations allow the agency to withdraw a proposed determination only when an “unacceptable adverse effect” on specific resources is not “likely.” The court remands the case to the district court to determine whether EPA’s withdrawal was arbitrary, capricious or an abuse of discretion. Trout Unlimited, et al v. Michelle Pirzadeh, et al, No. 20-35504 (9th Cir.). On Sep. 9, EPA asks the district court to remand and vacate the 2019 withdrawal of the proposed determination, stating that the withdrawal did not meet the Ninth Circuit’s standard for unlikely “unacceptable adverse effects.” The district court grants EPA’s request on Oct. 29, which reinstates the 2014 proposed determination and resets deadlines for EPA to issue a final determination under section 404 of the CWA. Bristol Bay Economic Development Corp., et al, v. Pirzadeh et al, No. 3:19-cv-00265 (D. Alaska).

Nov. 17, 2021 EPA announces it will be extending the timeline for EPA to issue a new determination under 404(c) of the CWA to May 31, 2022. Under section 404(c) of the CWA, EPA must withdraw the proposed determination or prepare a recommended determination within 30 days of the court’s decision, absent a showing of “good cause.”

Dec. 9, 2021 Alaska Governor Mike Dunleavy says he will ask state legislators to support a bid for the state to take over wetlands permitting under section 404 of the Clean Water Act. If successful, the state would control wetlands permitting decisions for the Pebble mine and other mining activities in the state. Under the CWA, a state or tribe can administer the 404 program if EPA determines they have sufficient capacity to do so. The Governor also plans to seek state control over permitting under the Resource Conservation and Recovery Act (RCRA).

May 26, 2022 EPA Region 10 issues a new proposed determination to protect waters in Bristol Bay. If finalized, the proposed determination would prohibit or restrict the use of certain waters as disposal sites for dredge or fill material associated with the Pebble mine. EPA received over 2,500 comments on the proposal, which can be accessed here.

Oct. 28, 2022 The House Committee on Transportation and Infrastructure releases a report finding Pebble Mine proponents “tried to trick regulators py pretending to pursue a smaller project with the intention of expanding” after approval of the initial proposal. The Committee finds that as top officials testified that Pebble had no plans to expand the mine, Tom Collier, then-CEO of the Pebble Partnership, “pitched a much longer-term Pebble Mine to investors.” The Committee relies on the “Pebble Tapes”, which were released on Sep. 21, 2020, and recorded by investigators from the nonprofit Environmental Investigation Agency (EIA), posing as investors, in conversation with chief executives of Pebble Limited Partnership and Northern Dynasty Minerals. The report urges changes to the project review process and asks the Attorney General to investigate the false statements made to Congress.

Dec. 1, 2022 The EPA Region 10 Administrator issues a Recommended Determination to prohibit and restrict the use of certain waters in the Bristol Bay watershed for the discharge of dredged or fill material developing the Pebble Deposit. EPA’s Office of Water will now decide whether to affirm, modify, or rescind the recommended determination.

Dec. 18, 2022 The District Court for the Eastern District of New York denies Northern Dynasty Minerals’ motion to dismiss a class action lawsuit brought by shareholders. The plaintiffs allege that Northern Dynasty Minerals fraudulently misled investors regarding the proposed Pebble Mine’s size and scope. In its ruling, the court notes that “the Pebble Tapes, interpreted in the light most favorable to plaintiffs, revealed a definite (and secret) plan to extend the Project . . . Defendants therefore had a duty to publicly disclose this expanded plan.” In re Northern Dynasty Minerals Ltd. Securities Litigation, 1:20-cv-05917-ENV-RLM (E.D.N.Y).

Dec. 22, 2022 The Pedro Bay Corp., an Alaska Native Corporation, finalizes an agreement with the The Conservation Fund and Bristol Bay Heritage Trust to institute three perpetual conservation easements covering more than 44,000 acres, effectively blocking a proposed access road that would service the Pebble Mine. 

Jan. 30, 2023 EPA issues a final determination under section 404(c) of the Clean Water Act to limit the use of certain waters in the Bristol Bay watershed as disposal sites for certain dredge or fill material associated with mining the Pebble deposit. The final determination affirms the recommended determination submitted by EPA Region 10, and effectively blocks the Pebble Mine as currently designed. EPA’s decision is based on a finding that “developing the Pebble deposit into certain waters of the United States will have unacceptable adverse effects on anadromous fishery areas” in the Bristol Bay watershed.

July 26, 2023 Alaska files a suit against EPA directly with the Supreme Court, asking the Court to review EPA’s final determination blocking construction of the Pebble Mine. Alaska argues that EPA’s “veto” of the project infringes on state sovereignty, violates the Administrative Procedure Act, and constitutes a taking without just compensation. State of Alaska v. U.S. et al., Docket No. pending (U.S.).