In disregard of the rule of law, established precedent, and long respected public policy, the U.S. Environmental Protection Agency (EPA) has contrived to preemptively block our ability to file a permit to develop the mineral resources at Pebble, located on State of Alaska land in Southwest Alaska, and have them objectively evaluated under the environmental laws of Alaska and the U.S. The basis for their initiative is a scientifically indefensible report called the Bristol Bay Assessment (BBA), designed to negatively influence the public discussion about Pebble and prejudice the process.
On April 29th, we formally responded to this federal overreach outlining the legal, process, and technical problems with EPA's approach. We continue to raise the legal and statutory issues because they are valid and the EPA is acting well outside of the authority established under the Clean Water Act (CWA), specifically Section 404(c) in this case. The CWA clearly identifies the U.S. Army Corps of Engineers as the lead federal agency for 404 actions. The EPA is pre-emptively blocking our ability to file for a 404 permit and marginalizing the role of the Corps and the state of Alaska. This is a precedent setting step and unveils issues that are far larger than Pebble. For this reason, business and trade associations across Alaska and across the U.S. are engaging on this issue.
I want to be clear about one thing regarding the EPA and its important role under the CWA. It has a duty to review projects in the permitting process. If an issue does not meet the EPAs mandate, the agency has the authority under the CWA to exercise a veto. It does not, or should not, have the ability to veto a project before a permit is sought (pre-emptive) or after a permit has been granted (retroactive).
The EPA appears to be advancing this pre-emptive process against Pebble based upon the BBA, which is a biased document with a pre-determined outcome, as demonstrated by EPA's actions and procedures prior to initiating the Assessment, and during its development. In our letter to the EPA we outline these problems. Our partner, Northern Dynasty Minerals, and the state of Alaska have also both asked the EPA's inspector general to investigate these prejudicial issues thoroughly.
We have already been criticized by some for not presenting "new" information to the EPA via our submittal. I submit, respectfully, that most may not have read our submittal in its entirety, and I summarize a few examples we brought to the EPAs attention.
EPA insists that its decision to proceed under Section 404(c) is based in large part on their BBA. But that document does not provide a legitimate basis for determining that the Pebble Project will cause an unacceptable adverse effect under Section 404(c). We outline in our letter that their projected impacts on downstream water quality, water flows and aquatic habitat are greatly exaggerated. Risks associated with tailings storage and other project features and operations are significantly overstated.
As we have not yet defined a proposed development plan for the Pebble Project, development footprints and footprint impacts associated with the BBA's mine scenarios are speculative, and speculation cannot form the basis for regulatory action under Section 404(c).
While the BBA predicts certain impacts of mineral development on aquatic habitat, it provides no causal link between these effects and "unacceptable adverse effects" on any Bristol Bay fishery. For this reason, EPA has not demonstrated that mineral development will cause unacceptable adverse impacts on fishery areas in the Bristol Bay watershed.
Estimates of potential aquatic habitat impacts associated with stream flow changes resulting from EPA's three mine scenarios provide a good example of why the Assessment represents an insufficient scientific foundation for regulatory decision making. This is the case for a number of reasons:
• EPA has proposed an arbitrary surplus water release strategy for its three mine scenarios that would deny one of the streams surrounding the proposed Pebble Project (Upper Talarik Creek) from receiving any restorative flows to mitigate downstream habitat effects, wrongly and unfairly attributing this arbitrary surplus water release strategy to Northern Dynasty Minerals. This attribution is entirely false.
• EPA has selected improper locations for releasing surplus water from its three mine scenarios, unnecessarily leaving miles of aquatic habitat in another stream surrounding the proposed Pebble Project (South Fork Koktuli) with no restorative flows.
• EPA has underestimated surplus water available for treatment and release by some 80 percent, leading to substantially larger flow-habitat effects than would actually occur.
• EPA has utilized an unsophisticated "rule of thumb" approach to measuring downstream habitat effects associated with stream flow changes, rather than using the sophisticated habitat modeling undertaken by Pebble Limited Partnership, which will provide the basis for a science-based impact assessment under the National Environmental Policy Act (NEPA).
A proper science-based surplus water release strategy, employing more rigorously devised hydrology estimates and sophisticated modeling of stream flow-habitat relationships, would demonstrate how to achieve net spawning and rearing habitat gains for the vast majority of anadromous and resident fish species. This singular example demonstrates the serious methodological and scientific flaws underlying the BBA, and why EPA must await the submission of a proposed development plan for the Pebble Project and completion of a comprehensive environmental impact statement under NEPA before undertaking any regulatory action under Section 404(c).
We have requested the EPA suspend its Section 404(c) process, to wait for the submission of a proposed development plan for Pebble and to participate fully in the NEPA permitting process. Not only will this result in a more comprehensive, transparent, inclusive and definitive project review, EPA will retain its authority to veto the Pebble Project in the future if it fails to demonstrate it will adequately protect regional fisheries. Our intent is to propose a responsible plan for Pebble that demonstrates we can co-exist with the fishery and no environmental harm will occur in having this fully evaluated via the comprehensive NEPA process.
Pebble Partnership's full 60-page letter, and other related documents are available online.
Tom Collier is chief executive officer of Pebble Partnership.
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