Vermont Law Top 10 Environmental Watch List for 2020

EPA Runs from CWA Veto Powers, Spawning New Life for the Pebble Mine Project

One of the world’s most productive ecosystems, the Bristol Bay watershed, has shaped the southwestern Alaskan landscape. A broad range of species find sanctuary in the watershed, including all five species of Pacific Salmon. These salmon raise, rear, and then run in the watershed, with the sockeye salmon run yielding roughly 46% of the world’s sockeye catch. These runs not only feed wildlife, native people, and the world, but they are also an integral piece of native culture and the regional economy. Annually, the harvest creates 20,000 jobs, and generates roughly $1.5 billion.

However, the proposed Pebble Mine project puts all of this at risk. Pebble Mine, a purported 20-year proposal, which is likely to result in active mining and impacts for decades longer than that, includes: a mile long, mile wide, quarter-mile deep, open-pit copper and gold mine; a 188-mile natural gas pipeline; an 83-mile private transportation route that includes 229 water body crossings, with 7 bridges, 73 fish passage channels and 149 drainage ducts; dams and embankments intersecting, blocking and potentially polluting critical salmon habitats; an ice-breaking ferry to transport harvested ore; and a 230-megwatt power plant. Perhaps most disturbingly, the proposal also calls for construction of the world’s largest earthen dam and a 10-square-mile waste pond to hold back between 2.5 and 10 billion tons of acidic mine waste. This waste requires treatment in perpetuity because any release of waste into ground or surface waters would likely devastate the salmon runs. Given the high record of failure rate for such impoundments and the fact that the area is seismically active, a breach appears to be more a question of when than if.

In 2010, Bristol Bay stakeholders, including six Alaska Native tribes, commercial and recreational fishermen, and seafood processors, petitioned the Environmental Protection Agency (EPA) to shield the watershed from the proposed Pebble Mine. Following a comprehensive, peer-reviewed, scientific study, EPA issued a “proposed determination” that effectively prohibited the issuance of the Clean Water Act (CWA) permit necessary to construct the mine. EPA, relying on extensive scientific data, cited multiple unacceptable impacts to streams, wetlands, and other aquatic resources in “an area of unparalleled ecological value” in issuing the proposed determination.

EPA issued this proposed determination under Section 404(c) of the CWA.  EPA has primary responsibility for administering the CWA, but the CWA gives the U.S. Army Corps of Engineers (the Corps) responsibility for issuing Section 404 permits for dredged and fill material – the type of permit Pebble Mine needs. But, given EPA’s general oversight authority over the CWA, Section 404(c) authorizes EPA to “restrict, prohibit, deny, or withdraw the use of an area as a disposal site for dredged or fill material if the discharge will have unacceptable adverse effects on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.” In short, EPA has an effective veto over the Corps’ permitting decisions.

If the Corps permits Pebble Mine, construction will degrade up to 21 miles of salmon streams and 3,000 acres of wetlands. If there is any failure and leeching, there will be even greater damage. If the failure is catastrophic, then the Bristol Bay’s ecosystem, cultural and economic value, and countless livelihoods will experience irreparable devastation.

These failures aren’t unheard of. In 2015, the Mount Polley cooper and gold mine experienced a spill that was called “one of the biggest environmental disasters in modern Canadian history.” Pebble Limited Partnership, the proponents of Pebble Mine, hired the same engineering firm that constructed the Mount Polley mine. As stated above, the CWA does not allow permits for projects that cause undue adverse impacts. Even if the project runs smoothly, science and history have shown that a mine of any scale will cause just that. Therefore, if properly applied, the CWA should prevent the proposed mine from being permitted.

Despite the requirements of the CWA, Pebble Mine is an issue to watch in 2020. The Corps is insistent on fast-tracking Pebble Mine’s permitting process. As part of its review and approval process, which involves a required review under the National Environmental Policy Act (NEPA), he final NEPA Environmental Impact Statement’s  expected release is in early 2020, and the Corps expects to issue the CWA permit by mid-2020, regardless of the devastating environmental impacts. The EPA critically commented on the Corps’ draft Environmental Impact Statement, claiming that it lacked sufficient scientific information to support the conclusion that proposed discharges would comply with the CWA and grossly underestimated the environmental impacts that would result from Pebble Mine. Yet, EPA’s decision to withdraw its proposed determination breathes life back into Pebble Mine by signaling that EPA will not use its CWA oversight authority to veto the Corps CWA permit.

The Bristol Bay watershed is a treasured resource that is largely unscathed by human interference. It’s an ecological haven that supports salmon in unmatched numbers. From there, the salmon nourish other wildlife, native culture, and the regional economy. EPA’s own science shows that even the smallest scale mine would have unacceptable adverse effects on the watershed. If anything, that science has gotten stronger. The pristine Bristol Bay watershed appears to be no place for highly impactful copper mine.