Spawning Bristol Bay sockeye salmon, with their distinctive red bodies and green heads, swim in the waters of Lake Clark National Park and Preserve in 2003. The U.S. Environmental Protection Agency on Tuesday announced that it has invoked a rarely used provision of the Clean Water Act to bar permiting of the controversial Pebble Mine. The agency concluded that the mine would cause irreparable harm to the rich Bristol Bay salmon fisheries and to the region’s ecosystem. (Photo by D. Young/National Park Service)
For opponents of the controversial Pebble Mine in southwestern Alaska, the decision by the U.S. Environmental Protection Agency to block the project’s development was cause for celebration.
“My people in Bristol Bay are so relieved with the EPA administration’s call that I’ll bet you they’re dancing in their villages,” Robin Samuelson, a longtime Native and fisheries leader from the Bristol Bay community of Dillingham, said in an online news conference Tuesday.
It is also the start, the mine opponents said, of a new campaign for wider protections in the Bristol Bay region, center of a massive commercial salmon fishery, sport fishing, a salmon-reliant Indigenous culture and a wild ecosystem.
That includes work with Alaska’s congressional delegation, Samuelson said.
“Just because the EPA has come out with its final ruling does not protect the land of Bristol Bay. It’s harder to open those lands but we need to go and get some congressional backing on a bill,” he said. “If that bill passes, those lands will never be open again to mining.”
The EPA determination on the Pebble deposit makes use of a provision in the Clean Water Act that bars issuance of wetlands-fill permits in special cases where the agency has determined that development poses extraordinary risks. The final determination was made on Monday and announced Tuesday.
The EPA action does not address other threats in the region, where there are over 20 mining claims currently active, the Pebble opponents said.
“What we need is something that prioritizes the salmon and the habitat and fisheries for the long term so it’s not a political or a judicial decision,” Brian Kraft, a fishing lodge owner and leader in the fight against the mine, said at the news conference. “The long-term goal and the long-term need is permanent protection for Bristol Bay so that we do not have to worry about this, (and) future generations don’t have to worry about some kind of crazy idea.”
Exactly what form those wider legal protections would take was yet unclear Tuesday.
“Today’s action by the EPA to preemptively veto the proposed Pebble Project is unlawful and unprecedented,” John Shively, president of the Pebble Limited Partnership, said in a statement. “For well over a decade, we have argued that fair treatment under the rules and regulations of the U.S. should be followed for Pebble or any other development project. Unfortunately, the Biden EPA continues to ignore fair and due process in favor of politics. This preemptive action against Pebble is not supported legally, technically, or environmentally. As such, the next step will likely be to take legal action to fight this injustice.”
Gov. Mike Dunleavy, in Alaska Public Media’s Talk of Alaska call-in show on Tuesday, said EPA’s determination resulted in “a sad day for Alaska and for the country.”
“This trillion dollars’ worth of wealth that right now the world is wanting, in terms of copper for the new economies and the electric economies, etc., is effectively killed by the feds,” Dunleavy said on the program. “This is a real problem not just for Alaska and other projects going forward but for the entire country, other states.”
His administration will fight to keep the economic opportunity from Pebble alive, he said, noting that the mine site is state land. “We’re going to do everything we can, including legal challenges,” he said.
Dunleavy also said the EPA determination sets a dangerous precedent for other Alaska projects.
In a statement released by his office, Alaska Attorney General Treg Taylor echoed that sentiment: “Washington’s overstep into the State’s process was unwarranted and should not be allowed to continue. As such, the State intends to challenge EPA’s decision. The State presented strong legal and policy arguments outlining why EPA’s decision is wrong and we look forward to meeting EPA in court.
EPA Administrator Michael Regan, in an embargoed news conference held Monday, emphasized that the decision was made on “project-specific basis,” was a rare use of the authority to block wetlands-fill permits under the Clean Water Act and does not affect projects beyond Pebble.
“In 50 years since the passage of the Clean Water Act, EPA has used this authority judiciously,” Regan said in the online news conference. The action “marks only the third time in 30 years that we’ve used the authority and it underscores the true irreplaceable and invaluable natural wonder that is Bristol Bay.”
Three years of study following the initial petition resulted in an assessment of the Bristol Bay watershed in 2014, which concluded that a Pebble-style mining project would cause irreparable damages and that use of the Clean Water Act’s provision was warranted. The Obama administration was on the verge of putting that determination into effect in 2016, until a federal court ruling put the process on pause. Soon after President Trump took office, a settlement with the Pebble Limited Partnership jettisoned the plan.
The Biden administration revived the Obama-era process, making good on a 2020 campaign promise. After the 2020 election, the U.S. Army Corps of Engineers rejected Pebble’s application for a wetlands-fill permit crucial to mine development. The company is appealing that permit denial.
To Samuelson, that long history contradicts the argument that the EPA determination short-circuited the normal regulatory process.
“Twenty years in the making, and it’s a preemptive strike? No. EPA did the right thing. They based it on science, not on politics,” he said in the news conference. “You know that old saying, money can’t buy you love? Well, Pebble, money can’t buy you a mine in Bristol Bay.”
Kraft made a similar argument.
“This process worked,” he said. “It went through. It had massive amounts of public comment. Three different rounds of public comment across the nation, and EPA heard the people of Bristol Bay. So It’s disappointing that the Dunleavy administration sees that it needs to get on the side of a foreign mining company rather than support the people of Bristol Bay and Alaska.”
Alannah Hurley, executive director of United Tribes of Bristol Bay, a Yup’ik, Dena’ina and Alutiiq consortium that has been in the forefront of the Pebble fight, said the federal government served the region’s people when the state did not.
“Throughout this struggle our own state government refused to consult with us. Instead the state has done everything in their power to assist this mining company instead of our Native people, our people had to call on our leaders in the nation’s capital in the hopes of being heard,” she said at the news conference.
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