EPA Takes Major Step toward Permanently Protecting Bristol Bay

Thank you, EPA, for listening to tribes, communities, and supporters—and moving closer to forever stopping catastrophic projects like Pebble Mine.

In a joint proposal filed today with the U.S. District Court for the District of Alaska, the U.S. Environmental Protection Agency (EPA) announced its intent to voluntary remand—with vacatur—the 2019 decision by the Trump administration to withdraw proposed protections for Bristol Bay. This would reinstate its 2014 Proposed Determination under Section 404(c) of the Clean Water Act that, if finalized, would stop the Pebble Mine and protect Bristol Bay.

EPA’s decision restores science, reason, and the rule of law to the decades-long fight to protect the national treasure that is Bristol Bay from the ill-conceived catastrophe that is Pebble Mine. It is a win for the environment, and a win for the Indigenous communities of Bristol Bay.

It also positions the agency to fulfill President Biden’s pledge to protect Bristol Bay.

To be clear, it is the start—not the end—of a long administrative process. But it shows that EPA is listening to the people of Bristol Bay and their millions of supporters, including NRDC.

EPA’s decision follows the recent U.S. Court of Appeals for the Ninth Circuit decision in Trout Unlimited et al. v. Pirzadeh et al., No. 20-35504 (9th. Cir. June 17, 2021), which revived a district court case filed by NRDC and our partners challenging the Trump administration’s 2019 illegal withdrawal of 404(c) proposed protections for Bristol Bay.

The Ninth Circuit ruled that EPA may “withdraw a proposed determination only if the discharge of materials would be unlikely to have an unacceptable adverse effect.” 

EPA has freely admitted that when the Trump administration withdrew its 404(c) proposed determination in 2019 it did not base its decision on technical judgments about whether the mine proposal addressed in the agency’s 2014 Proposed Determination would result in an “unacceptable adverse effect.” 

In today’s filing with the court, EPA “acknowledges that it did not address the standard that the Ninth Circuit subsequently determined must be met for withdrawal of a proposed determination.” Therefore, EPA signaled its plans to “file a motion for remand with vacatur” by September 28, 2021.

This will reverse the political withdrawal of the Trump administration and reinstate the proposed protections that the people of Bristol Bay demand. By vacating the Trump administration’s 2019 withdrawal, EPA will reinstate the Obama-Biden administration’s 2014 Proposed Determination that limits the scope of proposed mining in Bristol Bay.

After extensive scientific study and public engagement, then EPA administrator Gina McCarthy initiated the 404(c) process in 2014. Unfortunately, this process was not completed before the change in administrations, and EPA’s Proposed Determination was halted in 2017 and ultimately withdrawn in 2019 by the Trump administration.

EPA is now grabbing this unique opportunity to resume the 404(c) process that was started in 2014 and provide the lasting protections that both President Biden and President Obama have promised to deliver. If finalized, EPA’s Proposed Determination would provide lasting protections for Bristol Bay—and prevent the Pebble Mine from ever being developed.

EPA has been bombarded to take such action.

The tribal and business leaders of Bristol Bay—as well as commercial fishermen, environmental 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.

Since President Biden’s inauguration, supporters of Bristol Bay have maintained a relentless drumbeat for long-term protection, including paid media and letter-writing campaigns:

• In February 2021, United Tribes of Bristol Bay (UTBB) sent a letter to EPA formally requesting 404(c) protection: “Our tribes firmly believe, and therefore formally request, that the EPA use [its] authority under the Clean Water Act and make ending the threat of the Pebble Mine a top priority.”
• Also in February, UTBB published an open letter (and full-page ad in Politico) to President Biden urging him to secure lasting protection for Bristol Bay through EPA’s exercise of its Section 404(c) authority: “The tribal people of Bristol Bay and those whose livelihoods depend on its waters have dealt with uncertainty from the threat of the Pebble Mine for far too long. Your administration has the opportunity to end that uncertainty by protecting this national treasure and securing the future the people of Bristol Bay deserve.”

• In March, Commercial Fishermen for Bristol Bay submitted a letter to EPA urging the agency to use its Clean Water Act authority to protect Bristol Bay, noting that “[w]ithout Clean Water Act 404(c) protections in place, Bristol Bay is not safe and Bristol Bay’s fishermen cannot rest.”
• Also in March, NRDC sent a letter to EPA urging immediate action under Section 404(c) to “bring long-awaited certainty to those whose lives and livelihoods depend on Bristol Bay’s clean water and salmon.” The letter supports UTBB’s request.
• In addition, Congressmen Jared Huffman (CA-02), chair of the House Natural Resources Water, Oceans, and Wildlife Subcommittee and a member of the Transportation and Infrastructure Committee, and Peter A. DeFazio (OR-04), chair of the House Transportation and Infrastructure Committee formally urged EPA to use its 404(c) authority to protect Bristol Bay.
• In April, 50 investment firms representing more than $105 billion in assets called on EPA to permanently protect Bristol Bay from the Pebble Mine.
• Also in April, 37 regional, state, national, and international groups sent a letter to EPA urging decisive action to protect Bristol Bay: “Reinstating Clean Water Act 404(c) protections would answer the call for justice from Bristol Bay Tribes, Indigenous communities, commercial and recreational fishermen, business owners, and conservationists. It would deliver a win-win-win for environmental justice, the economy, and the environment.”

• In May, NRDC submitted an extensive legal memorandum to EPA detailing why it has the authority and obligation under Section 404(c) of the Clean Water Act to protect Bristol Bay. The memorandum noted that “EPA is the federal agency uniquely positioned, through the exercise of its Section 404(c) authority, to provide lasting protection to the Bristol Bay region, its communities, and its wildlife.”
• In June, Businesses for Bristol Bay released an open letter to the Biden administration and Congress from more than 200 companies and industry associations voicing support for permanently protecting Bristol Bay. Business signers range from leaders in the food service and retail industries, including Sysco, Wegmans, Public, and Hy-Vee, to outdoor recreation and commercial fishing brands, such as Patagonia, Keen, Sitka, MeatEater, and Grundéns.
• In July, UTBB urged EPA to officially reopen the Clean Water Act Section 404(c) process and permanently protect Bristol Bay from the proposed Pebble Mine. “The recent decision by the Ninth Circuit Court of Appeals in Trout Unlimited et al., provides an opportunity for the EPA, under your leadership, to complete the Section 404(c) process begun in 2014 and provide the lasting protections that President Biden and President Obama promised to deliver,” it says in the letter signed by UTBB Board President Robert Heyano. “UTBB believes strongly that proper application of the law and the science to the current circumstances allows only one acceptable result: permanent protections for the Bristol Bay watershed through Section 404(c).”
• In July, following the Ninth Circuit Court of Appeals’ decision, NRDC sent a letter to EPA urging it to expeditiously reinstate its 404(c) determination. The letter supports UTBB’s request.

• In August, Bristol Bay Native Corporation (BBNC), Bristol Bay Native Association (BBNA), and Bristol Bay Economic Development Corporation (BBEDC) wrote EPA urging it to reinstate the 404(c) process and “then move as quickly as possible to complete a 404(c) Final Determination that provides robust protections for the region’s irreplaceable waters and fisheries.” The letter echoes UTBB’s request. 
• Also in August, 46 local, state, national, and international organizations representing tens of millions of members and activists sent a letter supporting and amplifying the requests made by UTBB, BBNC, BBNA, and BBEDC following the Ninth Circuit Court of Appeals’ decision. It also came on the one-year anniversary of President Biden’s promise to protect Bristol Bay. The letter urges EPA to fulfill President Biden’s promise by taking immediate action under Section 404(c) of the Clean Water Act to protect Bristol Bay and stop the Pebble Mine.
• In addition, 14 hunting and angling organizations and trade associations sent a letter to EPA in August requesting the agency to use its 404(c) authority to protect the world-class fishery of Bristol Bay.

EPA is listening!

It has been 10 years since EPA first visited Bristol Bay to investigate proposed large-scale mining and the dangers it poses to the watershed.

It has been seven years since EPA issued its Proposed Determination under Section 404(c).

It has been six years since President Obama visited Bristol Bay and called it a “remarkable” and “important” natural resource that deserves permanent protection.

And it has been more than one year since President Biden pledged to protect Bristol Bay.

Thank you, EPA, for now taking the first steps toward fulfilling President Biden’s promise. Thank you for listening to the tribes and communities from Bristol Bay and their countless supporters. And thank you for starting the administrative process that will hopefully result in permanent protections for Bristol Bay.