With Pebble’s EIS finalized, here’s what still has to happen before the mine is built

The Bristol Bay Native Corporation hold subsurface land rights along much of the transportation...
The Bristol Bay Native Corporation hold subsurface land rights along much of the transportation corridor needed to access the Pebble Mine site.(KTUU)
Published: Jul. 24, 2020 at 10:01 PM AKDT
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ANCHORAGE, Alaska (KTUU) - The publication of the Final Environmental Impact Statement marked the most significant step in the effort the develop the copper, gold and molybdenum mine at the Pebble deposit to date.

While the document doesn’t grant the Pebble Partnership the federal permits it needs to move forward toward production, the company hails its publication as a sign it will receive the necessary permits. Meanwhile, mine opponents have criticized the Final EIS, claiming it is incomplete in its examination of the impacts of the mine.

Developing the Pebble deposit is at minimum three years away, but the Pebble Partnership needs several permitting decisions to go its way, and land dispute and lawsuits pose potential roadblocks that could halt development.

Essential steps before mine development can begin

Alaska Department of Environmental Conservation CWA Section 401 certification or waiver

The primary permit the U.S. Army Corps of Engineers is evaluating the Pebble Partnership’s application for is under Section 404 of the Clean Water Act, which regulate the discharge of dredge or fill material into waters of the United States, including wetlands. However, before the Army Corps can issue an authorization that would result in discharge into waters of the United States unless, it must receive either a certification verifying compliance with existing water quality requirements, or one that waives the certification requirement.

Public notice for the certification application was issued Friday. Public comment is being accepted on the application. The deadline to comment is August 24, 2020.

You can view the public notice, which includes instructions on ways to submit comments here.

USACE Clean Water Act Section 404 permit

The CWA Section 404 permit is the most significant permit Pebble must acquire in order to build the project. If Army Corps does not issue the permit, then the project will not move forward with other permitting requirements.

The EPA describes the Section 404 permit program as follows:

“The basic premise of the program is that no discharge of dredged or fill material may be permitted if: (1) a practicable alternative exists that is less damaging to the aquatic environment or (2) the nation’s waters would be significantly degraded. In other words, when you apply for a permit, you must first show that steps have been taken to avoid impacts to wetlands, streams and other aquatic resources; that potential impacts have been minimized; and that compensation will be provided for all remaining unavoidable impacts.” Permit Program under CWA Section 404 Overview

USACE is also responsible for evaluating Pebble’s application under Section 10 of the Rivers and Harbors Appropriation Act of 1899, which states in part that no structures in any port or navigable river outside of established harbor lines can be created without plans recommended by the Chief of Engineers and authorized by the Secretary of War, unless that creation was already authorized by Congress.

The Army Corps’s decisions on Pebble’s CWA Section 404 permit and authorization under the Rivers and Harbors Act will be issued in a joint-Record of Decision with the U.S. Coast Guard, and can be published no sooner than August 23.

U.S. Coast Guard authorization for Newhalen River bridge

The U.S. Coast Guard is responsible for reviewing and approving locations and navigational clearances in bridges crossing navigable waterways of the United States. The Pebble Project would include a bridge crossing the Newhalen River as part of the transportation corridor to the mine.

USCG is accepting comments on the bridge design and navigational needs of river users through August 5. Boat owners in the near the project are asked to provide information on their vessels, including the type, overall length and height from the waterline to the highest fixed point.

The public notice states that the Coast Guard’s decision to grant approval rests primarily on the effects the project has on navigation, and comments of an environmental nature will be forward to the USACE.

You can view the public notice, which includes instructions on ways to submit comments here.

Federal authorization for pipeline portion along Outer Continental Shelf

The Bureau of Safety and Environmental Enforcement, within the U.S. Department of the Interior, is responsible for authorizing part of the project’s natural gas pipeline that would cross Cook Inlet from a new port at Diamond Point to near Anchor Point. BSEE authorization is needed for the pipeline right of way on the portions that lie on the Outer Continental Shelf of Cook Inlet.

A spokesperson for the Pebble Partnership says the company withdrew it’s application for the Amakdedori route and have indicated to BSEE that they will have an updated application for the northern crossing, which the company plans to submit next week.

State of Alaska issued permits

If the Pebble Partnership receives the permits described above, it will still need dozens of state issued permits for the project to advance.

The permits include the Department of Natural Resources, Department of Environmental Conservation and the Department of Fish and Game. You can learn more about the multiple types of permits here.

Pebble has not yet applied for state permits. The company expects the process to take two to three years.

Friday, Gov. Mike Dunleavy issued a statement saying in part, “The Pebble Partnership has not even initiated the state permitting process and is not expected to do so until a Record of Decision is released by the Corps of Engineers later this year. When that happens, the Pebble Project will undergo a thorough, fact based analysis by the appropriate state agencies to determine if it meets Alaska’s high standards for environmental protection.”

Authorization by Alaska State Legislature

The final authorization for a large scale mine in the Bristol Bay Fisheries Reserve rests with the Alaska State Legislature.

The measure became law after a ballot initiative in 2014 passed with 65 percent of Alaskan voters voting in favor of the initiative. The law was challenged by the Alaska Mining Association, but the Alaska Supreme Court upheld it.

Though the initiative did not mention Pebble, adding one more layer to ensure any mine in the area would not endanger the fishery was the organizers’ goal. Because Pebble is the first mine of the size required to invoke the law into practice, if it receives all the necessary permits it will be the first time the Alaska State Legislature has to interpret how to execute the law.

“If the state does it’s job - and I’m confident it will - it does a rigorous and thorough review of our state permits and we are in good position where we have our federal permit and our state permit, I think the legislature is going to approve this project and we’re going to go into construction,” Pebble Partnership CEO Tom Collier said Friday.

Potential Project Roadblocks

EPA Veto

Other than being denied a permit from the Army Corps, the most potentially damning action that could halt the mine is a veto by the Environmental Protection Agency.

Under Section 404 (c) of the Clean Water Act, the EPA is authorized to restrict or prohibit the use of an area as a disposal site for fill or dredge material if the EPA Regional Administrator believes the permit activity will cause unacceptable adverse impact to to fisheries, among other resources. It can issue a veto before a permit is applied for, while an application is pending, or after a permit has been issued.

Under President Obama in 2014, the EPA issued a proposed determination that effectively prohibited any large scale mining in the area of the Pebble deposit.

In July of 2019, the EPA under President Trump withdrew its proposed determination for the Pebble deposit area.

Despite withdrawing the proposed determination, the EPA initiated a dispute resolution process after it wrote that it believed the USACE underestimated the impacts of the proposed project. The process initiated could have resulted in the EPA vetoing the Pebble project specifically, rather than large scale mining in the general area as described in the 2014 proposed determination.

In May of 2020, EPA Region 10 Administrator Chris Hladick wrote the Army Corps describing cooperation between the two agencies, as well as the U.S. Fish and Wildlife Service as “invaluable.” Hladick indicated that the EPA would not continue elevating the dispute resolution process, therefore not issuing a veto.

The EPA put restrictions on mining in Bristol Bay during under presidential administration, then withdrew them under the next. Some mine opponents have told Channel 2 they are looking to the November election to cause a shake up in the EPA.

Lawsuit against the EPA

After the EPA withdrew its proposed determination last year, a slew of groups opposing the mine filed a lawsuit against the EPA for its action, claiming “the withdrawal of the proposed determination was arbitrary, capricious, an abuse of discretion, and not in accordance with the law, in violation of the CWA and The Administrative Procedure Act.”

Multiple lawsuits, filed first by Alaska Native and regional groups and followed by environmental and sportfishing groups were consolidated into one case.

After a hearing in April, U.S. District Judge Sharon Gleason dismissed the case, saying that the EPA’s action not one that can be challenged in court.

Trout Unlimited appealed the ruling. It has before the Ninth District Court of Appeals is scheduled for August 12.

The group hopes to have the court establish that it has jurisdiction to review the EPA’s action, and to review the EPA’s withdrawal of the proposed determination. Ultimately, the group seeks to have the court order the EPA to undo its action, thereby putting the proposed determination back in place.

The court has granted expedited review in the case.

Unresolved access issues

Though the Pebble deposit is on state land, the route the Army Corps of Engineers deemed the “Least Environmentally Damaging Practicable Alternative” requires Pebble to cross lands held by groups with a long history of opposing the project.

“BBNC is the landowner - the subsurface landowner, over much, if not all of the transportation corridor,” Daniel Cheyette, Vice President of Lands and Resources at Bristol Bay Native Corporation said Friday. “We have told the Corps, we have told PLP from day one that our subsurface is not available for its use in this project, nor are its resources, which include the gravel, the rock and all the things that would be necessary to build the infrastructure. We have objected throughout this process and we will continue to object, and we still don’t believe that this project can go forward without authorization to use our subsurface land.”

Despite the unrelenting opposition from BBNC and other landowners, Pebble CEO remains confident that the company will obtain the rights of way it needs to access the mine site.

In most states, acquisition of private land through eminent domain can only by power of the state for public use, such as road construction. However, Title VIII Section 18 of Alaska’s Constitution allows for proceedings in eminent domain to be “undertaken for ways of necessity to permit essential access for extraction or utilization of resources.”

Both Collier and Cheyette said they were aware of the provision.

“It may be an option, but it’s not an option that we’re considering at this point,” Collier said. “What we’re looking at now is persuading the landowners that this project is real, that it won’t damage the fishery and that it’s in their economic interest to work with us and make this happen.”

KTUU asked the office of both Governor Dunleavy and DNR Commissioner Corri Feige if they would consider exercising Title VIII Section 18 of Alaska’s Constitution if Pebble and the landowners cannot come to an agreement private. Neither provided a comment addressing our inquiry.

Lawsuit against the USACE

Sources with multiple groups opposed to the mind have told KTUU that if the Army Corps issues a permit for the Pebble mine, they will consider litigation.

Lawsuits at this point in major projects are to be expected, Collier said.

“There’s not a major project in America that after it gets its record of decision doesn’t go into litigation,” Collier said. “The court doesn’t get to come in and second guess the decisions that were made. It only can look at whether the Corps of Engineers took a hard look at every every issues, and this Corps of Engineers looked at every single significant issue, and if you read the EIS you see that’s the case.”

Collier says though a lawsuit is likely, the litigation is unlikely to slow the project’s development unless a judge issues and injunction.

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