12/15/2017 - Regulatory Rollback

Bristol Bay Pebble Deposit Mine

by EELP Staff

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Why it Matters

Bristol Bay watershed, located in southwestern Alaska, is home to some of the world’s largest runs of wild salmon, including the world’s largest sockeye salmon run. The watershed’s aquatic habitats support sport and commercial fishing, providing significant economic benefits and employment opportunities to the region. In addition, many Alaska Natives live near Bristol Bay and rely on its natural resources to maintain a subsistence-based lifestyle.

The Pebble deposit, which contains large amounts of copper, gold, and molybdenum, is located within the watershed. Pebble Limited Partnership has proposed plans to build a large open-pit mine at the Pebble deposit. Mining the Pebble deposit could result in discharges polluting the Bristol Bay watershed, including the same streams and wetlands that support salmon and other species.

In 2014, EPA proposed restricting the usage of certain waters as disposal sites for mining activities “…because of the high ecological and economic value of the Bristol Bay watershed and the assessed unacceptable environmental effects that would result from such mining.” EPA still has not finalized a determination that would restrict disposal sites available for use by the mining project.

Current Status

On Nov. 25, 2020, the Army Corps of Engineers (ACE) denied Pebble’s request for a discharge permit under the Clean Water Act (CWA), without which the project cannot continue. ACE determined that Pebble’s compensatory mitigation plan, submitted on Nov. 4, failed to ensure that the project would comply with CWA guidelines under section 404. On Feb. 25, 2021, ACE accepted Pebble’s request to reconsider the permit denial.

History

Northern Dynasty Minerals Ltd., Pebble Limited Partnership’s parent company, purchased the mineral rights to and began exploring the Pebble deposit in the early 2000s.

May 21, 2010 EPA Region 10 (Pacific Northwest) receives a petition from six tribal governments to initiate the process of preemptively protecting the Bristol Bay watershed from adverse effects of potential mining activities. This petition comes while EPA is already considering options to protect Bristol Bay.

Feb. 7, 2011 The EPA Regional Administrator announces that EPA will conduct an ecological risk assessment of the Bristol Bay watershed, which ultimately involves three years of research and review. Later that month, Northern Dynasty releases the preliminary assessment and details of the Pebble deposit mining project through press releases and filings with the Securities and Exchange Commission.

May 18, 2012 draft report of the ecological assessment is announced, and EPA requested public comments on the report. In early August of 2012, EPA convenes a panel of experts to conduct an independent peer review of the draft report.

April 30, 2013 EPA releases the second draft assessment for public review and comment, following the peer review report.

Jan. 15, 2014 EPA Region 10 releases the final report, An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska. The authors conclude that 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 sends a consultation letter to Pebble Limited Partnership, Alaska Department of Natural Resources, and the US Army Corps of Engineers announcing its decision to “review potential adverse environmental effects of discharges of dredged and fill material associated with mining in the Pebble deposit.” This initial consultation is the first step in proposing a determination to protect the Bristol Bay watershed. It gives the recipients an opportunity to respond with information demonstrating that no unacceptable adverse effects would occur.

May 21, 2014 Pebble Limited Partnership files a lawsuit in the District Court of Alaska challenging EPA’s authority to initiate the determination process before Pebble Limited Partnership applied for a mining discharge permit. Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00097.

July 21, 2014 EPA Region 10 publishes a proposed determination for review and public hearings. The determination would restrict the use of certain waters as disposal sites for the mine. This is the second step of the determination process.

Sep. 3, 2014 Pebble Limited Partnership files a second lawsuit alleging EPA violated the Federal Advisory Committee Act (FACA) when developing the ecological assessment for Bristol Bay. Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00171 (D. Alaska).

Sep. 19, 2014 EPA publishes a Notice of Extension for the Proposed Determination, allowing the Regional Administrator to postpone a decision on whether to withdraw the determination or to prepare a recommended determination for the EPA Administrator. This decision would have been the third step in the determination process.

Sep. 26, 2014 The court dismisses the May 21, 2014 case challenging EPA’s authority to initiate the determination process. The court found that EPA’s consultation letter could not be challenged and reviewed under the Administrative Procedure Act. Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00097.

Oct. 14, 2014 Pebble Limited Partnership files a third lawsuit in the District Court of Alaska against EPA regarding EPA’s response to Pebble Limited Partnership’s request for documents under the Freedom of Information Act (FOIA). Pebble Ltd. P’ship v. EPA, No. 3:14-cv-00199.

Nov. 25, 2014 The District Court for the District of Alaska grants a preliminary injunction restricting EPA from taking any further action in the determination process until the court makes a final ruling in the case. Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00171 (D. Alaska).

May 28, 2015 The Ninth Circuit upholds the District Court’s dismissal of the case regarding EPA’s authority to initiate the determination process. Pebble Ltd. P’ship v. EPA et al., No. 14-35845 (9th Cir.).

June 4, 2015 The District Court dismisses certain portions of Pebble Limited Partnership’s complaint in Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00171, limiting the scope of the case.

Aug. 24, 2015 The District Court grants partial summary judgment to EPA in Pebble Ltd. P’ship v. EPA, No. 3:14-cv-00199, leaving only one part of the FOIA request unresolved.

Jan. 12, 2016 The District Court for the District of Alaska  rules in favor of Pebble Limited Partnership in the FOIA lawsuit and orders EPA to reevaluate the documents it withheld from Pebble Limited Partnership (No. -00199). In the same decision, the court rules that EPA did not have to produce certain documents relevant to the FACA case (No. -00171).

June 14, 2016 The District Court reviews EPA’s actions under the January 12, 2016 order to reevaluate its FOIA response (No. -00199). The court resolves all claims by ordering EPA to release additional documents to Pebble Limited Partnership. Final judgment is entered on June 28, 2016 following EPA’s compliance with the order.

Jan. 4, 2017 In response to a joint motion by Pebble Limited Partnership and EPA, the court grants a temporary stay in the FACA case (No. -00171). This stay puts the case on hold while Pebble Limited Partnership and EPA explore ways to settle the case outside of litigation.

Trump Era

May 12, 2017 EPA enters into a settlement agreement with Pebble Limited Partnership to resolve the three court cases. The settlement agreement requires that EPA begin the process of withdrawing the proposed determination and that Pebble Limited Partnership files a Clean Water Act permit application for the Pebble deposit within 30 months.

July 19, 2017 EPA publishes a plan to withdraw the proposed determination and a request for comments and review. Since this withdrawal would be completed by the Regional Administrator, EPA also seeks comment on whether the EPA Administrator should review the Regional Administrator’s withdrawal decision.

Oct. 17, 2017 The comment period for the notice to withdraw is closed.

Aug. 31, 2018 The Corps publishes the Environmental Impact Statement Scoping Report, which summarizes the comments received and will be used as the agency develops the environmental impact statement.

Jan. 5, 2018 The US Army Corps of Engineers announces it has accepted an application from Pebble Limited Partnership for a proposed mining operation and that an “environmental impact statement level of analysis will be required.”

Jan. 26, 2018 EPA reverses course and announces it will not withdraw the proposed determination, with Administrator Pruitt saying “any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.”

March 29, 2018 The Corps publishes a Notice of Intent to prepare a Draft Environmental Impact Statement for the Pebble proposal. 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. The Notice is open for public comment until June 29, 2018.

Feb. 20, 2019 The Corps releases the Draft Environmental Impact Statement for the proposed Pebble deposit surface mine. Industry responds positively to the Draft Environmental Impact Statement, whereas project opponents allege that it does not sufficiently consider the full scope of likely environmental impacts.

Feb. 22, 2019 Pedro Bay Corporation, a local Alaska Native Village Corporation, issues a press release stating that two of the three alternatives included in the Draft Environmental Impact Statement require the use of approximately 800 acres of land owned by Pedro Bay Corporation. The corporation’s board of directors has twice voted against granting Pebble Limited Partnership access to its land.

March 20, 2019 EPA Administrator Andrew Wheeler recuses himself from matters related to the Pebble project. Separately, the Corps states that it has not received a compelling reason to extend the 90-day comment period on the draft environmental impact statement. Members of the Alaska State House of Representatives have submitted a letter to the Corps requesting an extension, and the Alaska State Senate Majority has sent a letter opposing an extension.

May 3, 2019 The Army Corps of Engineers extends the comment period by 30 days for the Draft Environmental Impact Statement. Comments may be submitted online up to the new deadline of June 29, 2019.

June 11, 2019 Fifty-four House Democrats send a letter to the US Army Corps of Engineers urging the Corps to deny the permit for the mine.

June 20, 2019 The House of Representatives approves an amendment to the Energy and Water Appropriations Act to block funding to the US Army Corps of Engineers to finalize its Environmental Impact Statement for the mine. This amendment, if signed into law, would block funding for the full fiscal year 2020.

June 26, 2019 EPA General Counsel orders the Region 10 Administrator to resume consideration of whether to withdraw the 2014 proposed determination that would restrict the use of certain waters as disposal sites for the mine. EPA began the withdrawal process in July 2017, but then reversed course in January 2018 leaving the proposed determination in place. The General Counsel has authority over the matter because EPA Administrator Andrew Wheeler and agency water chief David Ross each have conflicts of interest in the matter.

July 1, 2019 EPA writes two comment letters to the Army Corps of Engineers. One letter reviews the draft environmental impact statement (EIS) under the Clean Water Act, and the second letter reviews the draft EIS under the National Environmental Policy Act. The letters contain recommendations for the environmental review process, noting that it “appears to lack certain critical information about the proposed project and mitigation strategies.” EPA also concludes that the Army Corps is likely underestimating the environmental impacts. EPA stops short of requesting a supplemental EIS, although EPA career staff recommended such a request in an earlier draft. The Interior Department, in a separate letter, calls for a revised EIS, noting, “the [Draft EIS] is so inadequate that it precludes meaningful analysis.” Neither EPA nor the Interior Department have the authority to force the Army Corps to conduct further analysis.

July 30, 2019 EPA withdraws the July 2014 proposed determination that would have rejected the Pebble mine under §404(c) of the Clean Water Act. This action responds to the June 26, 2019 order from EPA’s General Counsel to resume consideration of whether to withdraw the 2014 proposed determination that would restrict the use of certain waters as disposal sites for the mine. The Pebble mine will now undergo the standard permitting procedure.

Sept. 17, 2019 In spite of announced changes to Pebble’s project proposal in its permit application, the Army Corps of Engineers states in a press briefing that it will not require public comment or scrutiny of the revised application.

Sep. 26, 2019 The Senate Appropriations Committee releases a committee report authored by Senator Lisa Murkowski which expresses concern about the adequacy of the draft environmental impact statement released by the Army Corps of Engineers.

Oct. 8, 2019 The Bristol Bay Defense Alliance file a lawsuit against EPA in the US District Court for the District of Alaska. The alliance is challenging the EPA’s July 30 withdrawal of their 2014 proposed determination to restrict mining in Bristol Bay under the Section 404(c) of the Clean Water Act, Bristol Bay Economic Development Corporation v. Hladick, No. 3:19-cv-00265-TMB (D. Alaska).

Oct. 9, 2019 Trout Unlimited and a coalition of environmental groups led by Alaska non-profit SalmonState file two additional lawsuits challenging EPA’s July decision, Trout Unlimited v. EPA, No. 3:19-cv-00268 (D. Alaska); SalmonState v. Hladick, No. 3:19-cv-00267 (D. Alaska).

Oct. 24, 2019 Army Corps grants a second extension to EPA, giving the agency until February 28 to decide whether the Pebble Mine project will have “substantial and unacceptable impacts.” If EPA makes this determination, it will elevate the permit decision for higher-level review pursuant to procedures in the agencies’ Clean Water Act Section 404(q) Memorandum of Agreement.

April 17, 2020 The US District Court for the District of Alaska grants the government’s motion to dismiss in Bristol Bay Economic Development Corporation v. Hladick, No. 3:19-cv-00265-TMB (D. Alaska). This case challenged EPA’s withdrawal of its 2014 proposed determination to restrict mining in Bristol Bay under the Section 404(c) of the Clean Water Act. Judge Gleason held that the court could not review the withdrawal because the decision was committed to EPA’s discretion.

May 20, 2020 More than 250 hunting, fishing, and outdoor recreation organizations send a letter to President Trump urging him to direct the Army Corps to deny the permit.

May 22, 2020 Media outlets report that the Army Corps stated it changed the project’s transportation route. This change will be reflected in the final EIS, despite not being part of the preferred alternative in the draft EIS.

May 28, 2020 EPA sends a letter to the Army Corps indicating that 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, the letter draws attention to the enormous environmental impacts the mine will have and the need to ensure Pebble’s actions to minimize and compensate for the damage are adequate. EPA writes that the project could “contribute to the permanent loss of 2,292 acres of wetlands and other waters…, including 105.4 miles of streams, along with secondary impacts to 1,647 acres of wetlands and other waters, including 80.3 miles of streams, associated with fugitive dust deposition, dewatering, and fragmentation of aquatic habitats.”

May 29, 2020 Trout Unlimited appeals to the 9th Circuit the case challenging EPA’s withdrawal of its 2014 proposed determination to restrict mining in Bristol Bay. Trout Unlimited, et al v. Chris Hladick, No. 20-35504 (9th Cir.).

July 24, 2020 The Army Corps releases the Final Environmental Impact Statement for the Pebble mine, which the Army Corps will use to decide whether to issue a permit. The report finds that under any construction alternative, the project would permanently impact over 2,000 acres of wetlands and 100 miles of streams. It concludes that the cumulative effects on commercial and recreational fisheries would be “minor to moderate.”

Aug. 20, 2020 In a letter to Pebble Limited Partnership, the Army Corps’ Alaska District states that compensatory mitigation will be necessary to offset the “significant degradation to [aquatic resources]” the mine will cause. The letter instructs the company to submit a compensatory mitigation plan within 90 days.

Aug. 24, 2020 The Army Corps releases a statement that the Pebble Mine project cannot be permitted as proposed and asks Pebble Partnership to submit its compensatory mitigation plans within 90 days. The plan must 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.

Nov. 25, 2020 The Army Corps of Engineers (ACE) denies Pebble’s request for a discharge permit, without which the project cannot continue. ACE determined that Pebble’s compensatory mitigation plan, submitted on Nov. 4, failed to ensure that the project would comply with Clean Water Act guidelines under section 404.  

Dec. 4, 2020 A Northern Dynasty Minerals Ltd. shareholder sues in a proposed class action 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.). 

Dec. 18, 2020 Northern Dynasty President and CEO Ron Thiessen announces that they plan to file an administrative appeal of the Army Corps’ denial of their discharge permit.

Early Biden Actions

Jan. 21, 2021 Pebble files an appeal with the Army Corps of Engineers regarding its 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.

Feb. 25, 2021 The Army Corps of Engineers (ACE) accepts Pebble’s request to reconsider ACE’s denial of a key permit for the Pebble Mine project last year. On March 1, 2021, a coalition of Bristol Bay commercial fishermen send a letter to EPA requesting the agency use its authority under the Clean Water Act to permanently veto the project.

March 11, 2021 Rep. Huffman, Chair of the Subcommittee on Water, Oceans, and Wildlife, and Rep. DeFazio, Chair of the Committee on Transportation and Infrastructure, ask EPA Administrator Regan to permanently ban mining in Bristol Bay by using the agency’s authority under Section 404 of the Clean Water Act.

April 7, 2021 A group of investors representing $105 billion in assets send a letter asking EPA and Congress to permanently block large-scale mining in the Bristol Bay watershed. The groups ask EPA to use its authority under Section 404 of the Clean Water Act, and Congress to establish a national Fisheries Area to provide “permanent federal protection” to the watershed.