Today the mining company behind the giant Pebble Mine – a colossal gold and copper mine proposed at the headwaters of Bristol Bay’s famous salmon runs – challenged the U.S. Environmental Protection Agency’s fundamental authority under Section 404(c) of the Clean Water Act after EPA announced last February that it would take the first step in the regulatory process to protect Bristol Bay from large-scale mining in the region.
Section 404(c) allows the agency to “prohibit, restrict, deny or withdraw” an area at risk of “unacceptable adverse effects” on water, fisheries, wildlife, or recreation resources. EPA has not yet issued a final rule (or even a proposed determinitation) under Section 404(c) yet it is already facing premature legal challenges.
The lawsuit filed today by the Pebble Partnership is a red herring and does not change the fundamental fact that Pebble Mine is the wrong mine in the wrong place. Pebble Mine would threaten the world’s greatest wild salmon fishery that generates $1.5 billion in annual revenue and 14,000 jobs. Salmon have also sustained the subsistence culture of Alaska Natives for millennia. If ever there was a situation worthy of invoking 404(c), it is to protect Bristol Bay’s waters from the proposed Pebble Mine – which EPA found would have “significant” and even “catastrophic” effects on the region.
Instead of seeking permits like it has promised to do for the last decade, the Pebble Partnership is seeking to eviscerate EPA’s existing legal authority under the Clean Water Act to protect America’s waters from harmful projects like the Pebble Mine. But EPA’s legal authority is crystal clear -- and does not stop Pebble from seeking permits. The Pebble Partnership’s claims that EPA cannot initiate 404(c) proceedings to protect Bristol Bay before a permit application has been submitted are erroneous – and were flatly rejected by the D.C. Court of Appeals last year. (The Supreme Court denied review.)
Section 404(c) of the Clean Water Act is a rarely used but essential tool that allows the EPA to restrict, prohibit, deny, or withdraw the use of an area as a disposal site for dredged or fill material “whenever” the agency determines the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational opportunities.
The Pebble Partnership’s position that EPA cannot initiate 404(c) proceedings to protect Bristol Bay before a permit application has been submitted ignores the plain language of the regulation and was rejected by the D.C. Court of Appeals. Upon review of EPA’s 404(c) veto, the court of appeals rejected a mining company’s argument that EPA’s authority under 404(c) is in any way temporally restricted. The 404(c) term that allows EPA to act “whenever,” the Court held, truly means whenever:
“Using the conjunction “whenever,” the Congress made plain its intent to grant the Administrator authority to prohibit/deny/restrict/withdraw a specification at any time.”
Responding to public demand to protect Bristol from the proposed Pebble Mine, EPA initiated the 404(c) process in Bristol Bay in February 2014 at the the express request of Bristol Bay tribes, the Bristol Bay Native Corporation, the commercial and sport fishing industries and others. Local stakeholders are joined by commercial fisherman, native peoples, jewelers, chefs, hunting and angling organizations, environmentalists and many others who believe EPA is acting responsibly to protect one of our nation’s greatest water resources.
EPA started the 404(c) process only after conducting an extensive scientific assessment of the Bristol Bay watershed, undertaken to determine the potential impacts of large-scale mining on salmon and other fish populations, wildlife, development, and Alaska Native communities in the region. In January 2014, EPA issued its much-awaited final Bristol Bay Watershed Assessment, which found that Pebble Mine would have significant impacts on fish populations and streams surrounding the mine site. Even without any accidents or failures (impossible for any large-scale mine), Pebble Mine would destroy up to 94 miles of streams and 5,350 acres of wetlands, ponds, and lakes – key habitat for a variety of fish species including tens of millions of sockeye salmon and the vast Southwest Alaskan ecosystem that these fisheries support. A tailings dam failure releasing toxic mine waste would have “catastrophic” effects on the ecosystem and region.
These conclusions are the culmination of three years of data review, scientific analysis, public hearings, peer review, and revision. EPA has taken every precaution to ensure that its assessment represents the best science regarding potential large-scale mining in the Bristol Bay watershed. In a process that far exceeds industry and academic standards of peer review, EPA’s Watershed Assessment has undergone two rounds of peer review during which 12 independent scientists reviewed the scope and content of the assessment and offered suggestions which EPA then incorporated into this final assessment. Furthermore, two rounds of public comment generated over 1.1 million individual comments. During the first comment period, over 90 percent of the 233,000 comments received supported EPA’s assessment. During the second comment period, over 650,000 people wrote to EPA explicitly supporting the Watershed Assessment and asking the agency to protect Bristol Bay; 73 percent of all comments, 84 percent of individual comments from within Alaska and a staggering 98 percent of individual comments from within Bristol Bay supported EPA action.
The science is clear. Opposition to Pebble Mine is clear. Which is why the Pebble Partnership has resorted to filing a lawsuit -- instead of permits.
Please stand up for clean water, wild salmon, and the local Alaskans whose livelihoods and heritage are at stake. Please support EPA's 404(c) process. And please tell Northern Dynasty Minerals -- now the sole owner of the Pebble Partnership after Mitsubishi, Anglo American, and Rio Tinto all divested -- that it's time to call it quits. Click here to stop the Pebble Mine.
Photo courtesy of Robert Glenn Ketchum