EPA Reaffirms Need to Protect Bristol Bay but Slows Process

EPA just sent a letter detailing its continuing commitment to move forward with the process under Section 404(c) of the Clean Water Act to permanently protect Bristol Bay from the threat of the Pebble Mine—while appearing simultaneously to delay its conclusion. 

Bristol Bay Tribes, commercial fishermen, and national and local conservation groups immediately expressed “deep disappointment” at the agency’s apparent adoption of a schedule that will not be concluded by summer 2022—the date urged by Bristol Bay Tribes and millions of supporters.  

The letter formally noticed EPA’s intent to issue a revised Proposed Determination under Section 404(c) of the Clean Water Act because the agency “continues to have reason to believe that the discharge of dredged or fill material associated with mining the Pebble deposit could result in unacceptable adverse effects on important fishery areas.”  

According to EPA, the letter is intended to “ensure there is ample opportunity for full consideration of available information to determine next steps before May 31, 2022.”

But Bristol Bay Tribes, commercial fishermen, businesses, and supporters around the country have been unanimous in their long-standing request to EPA that it complete the 404(c) process to protect Bristol Bay by the start of the 2022 fishing season. With this letter, EPA appears to have extended that timeline without any compelling need to do so. 

The delay drew an immediate expression of concern from Bristol Bay Tribes, fishermen, and conservation groups. Alannah Hurley, Executive Director of United Tribes of Bristol Bay representing 15 Tribes and 80 percent of the region’s population, issued this statement objecting strongly to the agency’s failure to consult with the region’s Tribes before sending yesterday’s letter:   

We are deeply disappointed that after months of outreach to EPA officials requesting robust Tribal consultation on the process moving forward, EPA’s announcement today further delayed the years-long effort to protect Bristol Bay without hearing our input. The Biden administration and the EPA have committed to consult Tribes in their decision-making process, but this should have taken place before today’s announcement. Now, at least one more fishing season could be imperiled by uncertainty.   

 EPA’s letter comes more than a decade after Bristol Bay Tribes formally requested Clean Water Act protections—which led to a three-year, twice peer reviewed scientific assessment supporting 404(c) protections for Bristol Bay. In 2014, the Obama administration issued a Proposed Determination under Section 404(c) of the Clean Water Act to protect Bristol Bay.  

That was never finalized, after the Pebble Limited Partnership sued EPA and the Trump administration withdrew the Proposed Determination. Enter the Biden administration, which requested the U.S. District Court for the District of Alaska to remand and vacate the Trump withdrawal.  

 The court’s subsequent remand—which reinstated EPA’s 2014 Proposed Determination—also reinitiated the 404(c) process where it had left off midway through its progression, while yesterday’s letter—pledging to issue a revised Proposed Determination by May 31, 2022—appears to restart the process from the beginning. 

 The good news is that the letter’s strong language once again signals EPA’s intent to issue permanent protections for Bristol Bay using its 404(c) Clean Water Act authority.  According to EPA, “What’s at stake is preventing pollution that would disproportionately impact Native Alaskans, and protecting a sustainable future for the most productive salmon fishery in North America.”  

If a Clean Water Act 404(c) determination is finalized, it would provide long-term protection for Bristol Bay, which generates $2.2 billion in annual revenue, supports 15,000 jobs, provides 57 percent of the world’s sockeye salmon, and sustains indigenous communities. 

Bristol Bay Tribes—as well as commercial fishermen, conservation groups, investment firms, businesses, and even Congress—have been urging EPA to permanently protect Bristol Bay from the ongoing threat of the Pebble Mine for decades. 

 Given the overwhelming scientific record that now exists detailing unacceptable harm to the region and its people if the Pebble Mine is built, there is no good reason for additional delay. Although EPA pledged in the letter to issue a revised Proposed Determination by May 31, 2022, that doesn’t mean the agency can’t or won’t issue it sooner, which would put it one step closer to a Final Determination.  

 That’s exactly what we’re urging EPA to do—conclude the 404(c) process by summer 2022.