In 2010, a group of Alaska Native tribes, commercial fishermen and others petitioned the Environmental Protection Agency to exercise its authority under the Clean Water Act to stop the mine. Section 404(c) of the Clean Water Act authorizes the EPA to prohibit, restrict, or deny the use of any defined area in waters of the United States as a disposal site whenever it determines, after notice and opportunity for public hearing, that the discharge of dredged or fill material into the area will have an unacceptable adverse effect on fishery areas (including spawning and breeding areas). I have a prior blog post that details more history about the area and this issue, including what happened when Trump became President.
Today, the EPA issued its Final Determination. Those who have long been involved in trying to protect the pristine and invaluable watersheds that feed into Bristol Bay have much to celebrate. Many of the proclamations on social media touted the action as a permanent protection of the fishery. As someone who first worked as an attorney on a lawsuit against the State of Alaska over its 20+ year process of permitting Pebble exploration without a public process, then later as a photographer who spent five years in the region doing fieldwork for a book about what is at stake (Where Water is Gold), I join in the celebration. We should be not only proud of the achievement, but grateful that we have a presidential administration that appreciates both science and the law.
Again, I reiterate this is something to be excited about and to celebrate. But some declarations have been a little too definitive. Eva's Wild declared in an email blast that "Pebble Mine is Stopped." The Alaska Center declared "The End of Pebble Mine."
This is not a final protection of the Bristol Bay watershed by any definition. First, you have to look at what the EPA's Final Determination actually says. The Final Determination focuses on what is referred to as the 2020 Mine Plan, and notes a mine built based on this plan would result in the following damages to the ecosystem (the section numbers refer to the section numbers of the Final Determination):
- The loss of approximately 8.5 miles (13.7 km) of documented anadromous fish streams (Section
- The loss of approximately 91 miles (147 km) of additional streams that support anadromous fish
streams (Section 4.2.2).
- The loss of approximately 2,108 acres (8.5 km2) of wetlands and other waters that support
anadromous fish streams (Section 4.2.3).
- Adverse impacts on approximately 29 additional miles (46.7 km) of anadromous fish streams
resulting from greater than 20 percent changes in average monthly streamflow (Section 4.2.4).
The EPA notes that routine operation of the mine would result in "unacceptable adverse effects on anadromous fishery areas in these watersheds." The Final Determination prohibits use of "waters of the United States" (i.e., wetlands) as "disposal sites for the discharge of dredged or fill material for the construction and routine operation of the 2020 Mine Plan." It also prohibits "future proposals to construct and operate a mine to develop the Pebble deposit with discharges of dredged or fill material in the Defined Area for Prohibition that would result in the same or greater levels of loss or streamflow changes as the mine plan." So, the Final Determination prohibits (1) use of wetlands as disposal sites, (2) related only to the Pebble deposit, (3) and damage to streams that is equal or greater to the 2020 Mine Plan. In other words, a mine could be constructed in the area if it was not from the Pebble deposit or constructed or operated in a way that avoids these restrictions.
The second important thing to note is that the process that the EPA followed is not mandated by law. It is purely a voluntary process - nothing in the Clean Water Act Section 404(c) requires that the EPA protect watersheds in this manner, it simply permits it. And the application of this "veto" hinges on the word "unacceptable:"
The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.
As we have seen through history, what may be "unacceptable" for one administration may be acceptable for another. When Donald Trump became President of the United States, we lost protection in four critical habitat areas of Alaska: the Tongass National Forest, Izembek National Wildlife Refuge, Lake Teshekpuk of the National Petroleum Reserve-Alaska, and Bristol Bay. Each of these involved court battles, and to this day the Biden Administration is still defending in court the illegal land transfer that would allow a road to be built through critical Black Brant habitat in the Izembek NWR. And whether mining these metals in the future and the resulting damage is "unacceptable" may hinge on the value of the metals in our march toward increasing use of renewable energy resources. The metals in the ground in this area are considered essential for building the components used in a variety of technologies.
Additionally, both the State of Alaska and the Pebble Limited Partnership have announced they will file a lawsuit challenging the EPA's Final Determination. The Ninth Circuit recently upheld the land transfer in Izembek NWR, and who knows how the right wing U.S. Supreme Court would rule on a challenge to the EPA's authority. Its recent decisions in Alaska tend toward stripping the federal government of authority over waters in Alaska and allowing the state to determine their fate.
As noted in the Final Determination, its decision only applies to the development of the Pebble deposit. there are at least seven different and sizable mining claims in the vicinity of the Pebble East and West claims.
There are also no federal legislative fixes on the table that could provide permanent protections to the Bristol Bay watershed. The land where all of the mineral claims are located are exclusively state lands, where Congress would have no authority over activities on the land.
In 2015 as I was working on producing my Bristol Bay book, my editor and I routinely heard from potential funding sources for the book that Bristol Bay was protected, so why spend the money on a book? Fortunately, we got the funding that was needed and my book was published in 2016. That year, Trump was elected and within a year, the EPA announced it was withdrawing its Proposed Determination. While I celebrate this victory with the businesses, families and tribes that also fought for protection, I remain vigilant and determined to not ease up. This political football will be kicking around for some time in the future until a permanent protection can be devised and implemented.