EPA moves to scrap Pebble Mine restrictions

The proposed Pebble Mine, subject of 20 years of controversy, 2.2 million public comments, a dozen Congressional hearings, multiple documentary films, media campaigns, ballot initiatives, lawsuits, and the most ubiquitous sticker in all of fishingdom, is back on the table. Seemingly the result of one 30-minute meeting between two men: EPA Administrator Scott Pruitt and Pebble CEO Tom Collier.

The Pebble Mine saga is a Faustian dilemma with enormous stakes: one of the world’s largest-known gold, copper, and molybdenum deposits located right at the headwaters of the most productive salmon watershed and arguably finest sport fishery on the planet. Sitting 200 miles southwest of Anchorage, the proposed mine site occupies a spongy saddle dividing the drainages of the Kvichak and Nushagak rivers, both of which flow into Bristol Bay.

The Kvichak supports the world’s largest sockeye run, last year funneling 60 million fish through Lake Illiamna and into the rivers and streams of the upper watershed. At 80 miles long and up to 22 miles wide, Lake Illiamna is a perfect salmon incubator with tens of millions of sockeye spending their first one to two years in the lake before swimming down the Kvichak and out to Bristol Bay. The system also grows huge rainbow trout, dolly varden, and grayling. All of this just 15 miles downstream of the Pebble Mine site by way of Upper Talarik Creek. Any kind of spill or disruption to Illiamna would jeopardize the entire ecosystem. From the other side of the proposed site, the Koktuli River flows into the Mulchatna and on to the Nushagak, which also empties into Bristol Bay. Commercial salmon and sport fishing in the Bristol Bay area account for 14,000 jobs, 29,000 fishing trips each year, and an annual economic impact of $1.5 billion.

Pebble2The Pebble project appeared effectively blocked as of 2014, when the EPA used its Clean Water Act authority to issue a determination limiting the size and scale of mining development in the Bristol Bay watershed. The EPA determination was the result of a three-year scientific review known as the Bristol Bay Watershed Assessment that concluded a mine such as that proposed by Pebble would pose unacceptable risk to the commercial salmon and sport fishery and to the ecological resources that support 4,000-year-old indigenous cultures.

However, the EPA under Scott Pruitt is a different agency than it was in 2014, just as his boss Donald Trump promised it would be. Pruitt, who during his tenure as Oklahoma Attorney General sued the EPA 14 times to block Obama-era regulations, makes no secret of his ambition to undo longstanding environmental rules that he and his boss see as overly burdensome to the fossil fuel and mining industries. Pruitt’s critics complain that he gives more credence to industryvoices than to the EPA’s own experts and scientists. His meeting with Collier on May 1, 2017—and his swift direction via email (within an hour of the meeting) to agency staff to withdraw the 2014 restrictions on large-scale mining in the Bristol Bay watershed—did little to quell those complaints.

It’s not that Pruitt heard only from industry voices regarding Pebble. Just days before his meeting with Collier, the EPA head, along with President Trump and Interior Secretary Ryan Zinke, received a letter from 300 organizations and companies reminding them of the more than 1.5 million public comments asking the federal government “to shield Bristol Bay from the dangers of the proposed Pebble Mine during the multi-year Bristol Bay Watershed Assessment and subsequent Clean Water Act process.” Several weeks later, one of the signers of the sportsmen’s letter and an outspoken opponent of the Pebble Mine, Trout Unlimited President and CEO Chris Wood, got an audience with Pruitt. But the most substantive outcome of that meeting appears to be a bonding moment when Pruitt shared that he’s a flyfisher, and has even fished Bristol Bay.

There is, of course, much more background to the story. Such as the lawsuit Pebble parent company, Canada’s Northern Dynasty Minerals Ltd., filed shortly after the 2014 proposed restrictions were enacted. The suit accused the EPA of colluding with anti-mining activists to pre-empt the permitting review process for Pebble under NEPA and the Clean Water Act. Settlement of that suit was announced just 11 days after the Pruitt-Collier meeting. Ironically, Pruitt issued a subsequent memo to EPA staff known as the Sue and Settle Directive, with the sole intent of curbing settlements with environmental groups. “We will no longer go behind closed doors and use consent decrees and settlement agreements to resolve lawsuits filed against the agency by special interest groups where doing so would circumvent the regulatory process set forth by Congress,” he said in a statement.

Under the settlement agreement, EPA agreed to clear the way for Pebble to apply for Clean Water Act permits by starting the process to withdraw the proposed restrictions—a process that would still require public notice and comment—and Pebble agreed to drop its lawsuits and requests for attorney fees. The EPA can still use the Bristol Bay Watershed Assessment “without limitation” in reviewing potential impacts, but it cannot make any Clean Water Act determination for four years, or until the Army Corps issues a final environmental impact statement. Pebble has until November 2019 to file a permit application.

“We are committed to due process and the rule of law, and regulations that are ‘regular,’” Pruitt said in a statement announcing the settlement. “The agreement will not guarantee or prejudge a particular outcome, but will provide Pebble a fair process for the permit application and help steer EPA away from costly and time-consuming litigation. We are committed to listening to all voices as this process unfolds.”

A 90-day public comment period on the “2017 Proposal to Withdraw Proposed Clean Water Act Restrictions on Mining Pebble Deposit” ended October 17, with the EPA receiving more than 750,000 comments opposing withdrawal of the 2014 restrictions. The comment period culminated with two public meetings—one in Dillingham, the hub of commercial salmon fishing on Bristol Bay, and the second in the town of Illiamna, closer to the proposed mine site and the base of Pebble’s earlier exploratory operations. Perhaps not surprisingly, public testimony during the four-hour hearing at Dillingham was unanimously against lifting restrictions on mining upstream of Bristol Bay, while testimony at Illiamna was mixed, with representatives from Pebble LP and the Alaska Miners Association speaking in favor of lifting the Clean Water Act restrictions. Several residents cited better job opportunities as reason for supporting the proposal, while many speakers voiced strong opposition to the proposed rollback out of concern for impacts to the area’s sport fishing and commercial salmon economy.

While the settlement and withdrawal of the Clean Water Act mining restrictions may clear the way for Pebble to apply for its mining permits, it does nothing to resolve what those closest to this saga know as a nearly unbearable tension between mining one of the world’s largest gold and copper reserves or protecting one of its most productive salmon ecosystems. That tension, at least for now, is back to the forefront.