Current Status
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 found 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. Northern Dynasty Minerals Ltd., Pebble Limited Partnership’s parent company, purchased the mineral rights and began exploring the Pebble deposit in the early 2000s. 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.”
Timeline
March 13, 2024 The State of Alaska filed a complaint against the federal government in the U.S. Court of Federal Claims in the District of Columbia, seeking $700 billion in compensation for the inability to mine the Pebble deposit. State of Alaska v. USA, Docket No. 1:24-cv-00396 (Fed. Cl.). Northern Dynasty Minerals separately filed two lawsuits. Northern Dynasty Minerals Ltd. et al v. USA, Docket No. 1:24-cv-00397 (Fed. Cl.); Northern Dynasty Minerals Ltd. et al v. EPA, Docket No. 3:24-cv-00059 (D. Alaska). Litigation is ongoing.
July 26, 2023 Alaska filed 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 argued that EPA’s “veto” of the project infringes on state sovereignty, violates the Administrative Procedure Act, and constitutes a taking without just compensation. On Jan. 8, 2024, the Supreme Court denied Alaska’s motion for leave to file a bill of complaint. State of Alaska v. U.S. et al., Docket No. 22-157 (U.S.).
Dec. 22, 2022 The Pedro Bay Corp., an Alaska Native Corporation, finalized 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.
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. On Jan. 30, 2023, EPA issued a final determination under section 404(c) of the Clean Water Act adopting the recommended determination, and effectively blocking the Pebble Mine as designed. EPA’s decision was 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.
Oct. 28, 2022 The House Committee on Transportation and Infrastructure released a report finding Pebble Mine proponents “tried to trick regulators by pretending to pursue a smaller project with the intention of expanding” after approval of the initial proposal. The Committee found 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 relied 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 urged changes to the project review process and asks the Attorney General to investigate the false statements made to Congress.
June 17, 2021 The Ninth Circuit ruled 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 remanded 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 asked 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 granted EPA’s request on Oct. 29, which reinstated 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).
Jan. 21, 2021 Pebble filed an appeal with the Army Corps regarding the agency’s decision to deny Pebble’s discharge permit (Permit Application No. POA-2017-00271). Pebble claimed 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 announced it will appeal the denial. The Corps accepted Pebble’s request on Feb. 25.
Dec. 4, 2020 Northern Dynasty Minerals Ltd. shareholders sued 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. The court approved a settlement agreement resolving the class action on Jan. 26, 2024. Darish v. Northern Dynasty Minerals Ltd., Nos. 1:20-cv-05917, 1:20-cv-06126 (E.D.N.Y.) (consolidated under No. 1:20-cv-05917).
Nov. 25, 2020 The Army Corps denied 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.
July 24, 2020 The Army Corps released 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 concluded that the cumulative effects on commercial and recreational fisheries would be “minor to moderate.” Based on the FEIS, on Aug. 24, 2020, the Army Corps announced that the Pebble Mine cannot be permitted as proposed and instructed 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 submitted the mitigation plan on Nov. 4, 2020.
Oct. 8-9, 2019 The Bristol Bay Economic Development Corp., Trout Unlimited, and a coalition of environmental groups challenged 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 consolidated the cases under Docket No. 3:19-v-00265 on Oct. 13, 2019. On April 17, 2020, the District Court granted 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 appealed the court’s decision to the Ninth Circuit on May 29, 2020. Trout Unlimited, et al v. Chris Hladick, No. 20-35504 (9th Cir.).
July 1, 2019 EPA sent two comment letters to the Army Corps. The first letter reviewed the DEIS under the Clean Water Act, and found that the project “may have substantial and unacceptable adverse impacts on fisheries resources… of national importance.” The second letter reviewed the DEIS under the National Environmental Policy Act (NEPA), and stated the DEIS “appears to lack certain critical information” and that the Army Corps is likely underestimating the proposed mine’s environmental impacts. The Department of the Interior (DOI) also sent 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.”
June 26, 2019 EPA General Counsel ordered 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 withdrew the 2014 proposed determination on Aug. 30, 2019.
March 29, 2018 The Army Corps published a Notice of Intent to prepare a Draft Environmental Impact Statement (DEIS) for the Pebble Project; issued the Scoping Report on Aug. 31; and released the DEIS on Feb. 20, 2019.
May 12, 2017 EPA entered into a settlement agreement with Pebble Limited Partnership to resolve the remaining litigation. The agreement required 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 published a plan to withdraw the proposed determination on July 19, and the Army Corps acknowledged receipt of Pebble’s application on Jan. 5, 2018. However, on Jan. 26, 2018 EPA announced it is suspending its decision to withdraw the 2014 proposed determination, and solicited further public comment to better understand the environmental impacts of the proposed project’s impact on the Bristol Bay watershed.
July 21, 2014 EPA Region 10 published its proposed determination to restrict the use of certain waters in Bristol Bay as disposal sites for mining activities. On Sep. 3, 2014, Pebble filed suit against EPA, alleging the agency violated the Federal Advisory Committee Act (FACA) in developing the ecological assessment for Bristol Bay. The court granted Pebble’s request for a preliminary injunction on Nov. 25, blocking EPA from taking action on its proposed determination until litigation is resolved. Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00171 (D. Alaska).
Feb. 28, 2014 EPA Region 10 announced 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 filed 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 dismissed the suit on Sep. 26, holding the letter could not be reviewed under the Administrative Procedure Act (APA), and the Ninth Circuit affirmed 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.).
Jan. 15, 2014 EPA Region 10 released 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.”