The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following.
Why it Matters
Bristol Bay watershed, located in Southwestern Alaska, is home to some of the world’s largest runs of wild salmon, including the world’s largest sockeye salmon run. The watershed’s aquatic habitats support sport and commercial fishing, providing significant economic benefits and employment opportunities to the region. In addition, many Alaska Natives live near Bristol Bay and rely on its natural resources to maintain a subsistence-based lifestyle.
The Pebble deposit, which contains large amounts of copper, gold, and molybdenum, is located within the watershed. Pebble Limited Partnership has proposed plans to build a large open pit mine at the Pebble deposit. Mining the Pebble deposit would result in discharge material being released into and polluting the Bristol Bay watershed, including the same streams and wetlands that support salmon and other fish species.
Because of the potential adverse effects of mining the Pebble deposit, EPA issued a proposed determination for the area. A determination, authorized under the Clean Water Act, permits EPA to restrict the usage of certain waters as disposal sites for mining activities. Additionally, during the determination proposal and review process, the U.S. Army Corps of Engineers cannot issue a mining discharge permit for the Pebble deposit. If finalized, the determination would establish prohibitions and restrictions on mining in certain protected areas of the Bristol Bay Watershed.
On January 5, 2018 The U.S. Army Corps of Engineers announced it had accepted an application from Pebble Limited Partnership for a proposed mining operation and that an “environmental impact statement level of analysis will be required.” On March 29, 2018 the Corps published a Notice of Intent to prepare a Draft Environmental Impact Statement for the Pebble proposal. Environmental groups accused the Corps of fast-tracking the process, based on an unusually low number of public hearings, a truncated timeline, and other factors. The Notice is open for public comment until June 29, 2018.
Northern Dynasty Minerals Ltd., Pebble Limited Partnership’s parent company, purchased the mineral rights of and began exploring the Pebble deposit in the early 2000s.
On May 21, 2010, EPA Region 10 (Pacific Northwest) received a petition from six tribal governments to initiate the process of preemptively protecting the Bristol Bay watershed from adverse effects of potential mining activities. This petition came while EPA was already considering options to protect Bristol Bay.
On February 7, 2011, the EPA Regional Administrator announced that EPA would conduct an ecological risk assessment of the Bristol Bay watershed, which ultimately involved three years of research and review.
Later that February, Northern Dynasty released the preliminary assessment and details of the Pebble deposit mining project through press releases and filings with the Securities and Exchange Commission.
On May 18, 2012, a draft report of the ecological assessment was announced, and EPA requested public comments on the report. In early August of 2012, EPA convened a panel of experts to conduct an independent peer review of the draft report. On April 30, 2013, EPA released the second draft assessment for public review and comment, following the peer review report.
On January 15, 2014, EPA Region 10 released the final report, An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska. The authors concluded that mining activities “would likely cause irreversible loss of significant reaches of streams that support salmon and other important species….”
On February 28, 2014, EPA Region 10 sent a consultation letter to Pebble Limited Partnership, Alaska Department of Natural Resources, and the U.S. Army Corps of Engineers announcing its decision to “review potential adverse environmental effects of discharges of dredged and fill material associated with mining in the Pebble deposit….” This initial consultation was the first step in proposing a determination to protect the Bristol Bay watershed. It gave the recipients an opportunity to respond with information demonstrating that no unacceptable adverse effects would occur.
On May 21, 2014, Pebble Limited Partnership filed a lawsuit in the District Court of Alaska challenging EPA’s authority to initiate the determination process before Pebble Limited Partnership applied for a mining discharge permit – Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00097.
On July 21, 2014, EPA Region 10 published a proposed determination for review and public hearings. The determination would restrict the use of certain waters as disposal sites for the mine. This was the second step of the determination process.
On September 3, 2014, Pebble Limited Partnership filed a second lawsuit in the District Court of Alaska – Pebble Ltd. P’ship v. EPA, et al., No. 3:14-cv-00171– alleging that EPA violated the Federal Advisory Committee Act (FACA) when developing the ecological assessment for Bristol Bay.
On September 19, 2014, EPA published a Notice of Extension for the Proposed Determination, allowing the Regional Administrator to postpone a decision on whether to withdraw the determination or to prepare a recommended determination for the EPA Administrator. This decision would have been the third step in the determination process.
On September 26, 2014, the court dismissed the May 21, 2014 case challenging EPA’s authority to initiate the determination process (No. –00097). The court found that EPA’s consultation letter could not be challenged and reviewed under the Administrative Procedure Act.
On October 14, 2014, Pebble Limited Partnership filed a third lawsuit in the District Court of Alaska against EPA regarding EPA’s response to Pebble Limited Partnership’s request for documents under the Freedom of Information Act (FOIA) – Pebble Ltd. P’ship v. EPA, No. 3:14-cv-00199.
On November 25, 2014, the court granted a preliminary injunction in No.-00171. This injunction restricted EPA from taking any further action in the determination process until the court made a final ruling in the case.
On May 28, 2015, the Ninth Circuit Court of Appeals upheld the District Court’s dismissal of the case regarding EPA’s authority to initiate the determination process (No. –00097).
On June 4, 2015, the district court dismissed certain portions of Pebble Limited Partnership’s complaint in No.-00171, limiting the scope of the case.
On August 24, 2015, the district court granted partial summary judgment to EPA in No.- 00199, leaving only one part of the FOIA request unresolved.
On January 12, 2016, the District Court of Alaska ruled in favor of Pebble Limited Partnership in the FOIA lawsuit and ordered EPA to reevaluate the documents it withheld from Pebble Limited Partnership (No.- 00199). In the same decision, the court ruled that EPA did not have to produce certain documents relevant to the FACA case (No.-00171).
On June 14, 2016, the court reviewed EPA’s actions under the January 12, 2016 order to reevaluate its FOIA response (No.-00199). The court resolved all claims by ordering EPA to release additional documents to Pebble Limited Partnership. Final judgment was entered on June 28, 2016 following EPA’s compliance with the order.
On January 4, 2017, in response to a joint motion by Pebble Limited Partnership and EPA, the court granted a temporary stay in the FACA case (No.-00171). This stay put the case on hold while Pebble Limited Partnership and EPA explored ways to settle the case outside of litigation.
On May 12, 2017, EPA entered into a settlement agreement with Pebble Limited Partnership to resolve the three court cases. The settlement agreement requires that EPA begin the process of withdrawing the proposed determination and that Pebble Limited Partnership files a Clean Water Act permit application for the Pebble deposit within 30 months.
On July 19, 2017, EPA published a proposal to withdraw the proposed determination and a request for comments and review. Since this withdrawal would be completed by the Regional Administrator, EPA also sought comment on whether the EPA Administrator should review the Regional Administrator’s withdrawal decision.
On October 17, 2017, the comment period for the notice to withdraw was closed.
On January 5, 2018 The U.S. Army Corps of Engineers announced it had accepted an application from Pebble Limited Partnership for a proposed mining operation and that an “environmental impact statement level of analysis will be required.” More details will be given when the USACE publishes a notice of intent for the EIS in the Federal Register.
On January 26, 2018 EPA reversed course and announced it will not withdraw the proposed determination, with Administrator Pruitt saying “any mining projects in the region likely pose a risk to the abundant natural resources that exist there. Until we know the full extent of that risk, those natural resources and world-class fisheries deserve the utmost protection.”
On March 29, 2018 the Corps published a Notice of Intent to prepare a Draft Environmental Impact Statement for the Pebble proposal. Environmental groups accused the Corps of fast-tracking the process, based on an unusually low number of public hearings, a truncated timeline, and other factors. The Notice is open for public comment until June 29, 2018.
Thank you to Harvard student Laura Bloomer, JD/MPP 2019 for her assistance with this rule.