Middle River Dispatches

A gumbo of fly-fishing, conservation, politics and days afield, for what it is worth....

Bristol Bay / Pebble Mine – Permit Application Denied

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The U.S. Army Corps of Engineers let science and common sense prevail over politics.

On Nov. 25 the U.S. Army Corps of Engineers notified the Pebble Limited Partnership and the public that “The district engineer has determined that issuance of a permit for the proposed project described in your June 8, 2020 application would not comply with the 404(b)(1) Guidelines and would be contrary to the public interest. Accordingly, the district engineer is denying your application for a DA [Department of the Army] permit.” [emphasis added] The Corps record of decision goes into the details of why they made the decision they did.

This is very good news and a nasty if not fatal wound to the Pebble project. One has to wonder, given the history of the project, whether any sane investors would throw good money after bad on this project.

The Corps provided a memo for the record  summarizing the Corps findings with respect to the compensatory mitigation plan. It was not pretty. The memo listed nine elements required to be included in a complete compensatory mitigation plan. The plan submitted by Pebble was found to be non-compliant with all nine elements. You can download and read the memo here.

U.S. Senators Lisa Murkowski and Dan Sullivan, both R-Alaska, issued a joint statement.

Murkowski and Sullivan: Army Corps Right to Reject Pebble Permit

“After years of review and analysis, the Army Corps has found that this project is ‘contrary to the public interest,’ ending consideration of its permit application and affirming that this is the wrong mine in the wrong place. I thank the agency and the broader Trump administration for completing a rigorous, impartial, and science-based process to determine the best course of action,” Murkowski said. “This is the right decision, reached the right way. It should validate our trust and faith in the well-established permitting process used to advance resource development projects throughout Alaska. It will help ensure the continued protection of an irreplaceable resource – Bristol Bay’s world-class salmon fishery – and I hope it also marks the start of a more collaborative effort within the state to develop a sustainable vision for the region.”

“I welcome the Army Corps’ Record of Decision to deny the permit,” said Senator Sullivan. “The Pebble Limited Partnership had its opportunity to present a project that could meet the high environmental standards in Alaska that we demand. Today, the Army Corps has made the correct decision, based on an extensive record and the law, that the project cannot and should not be permitted. Resource development is one of the key industries that drives Alaska’s economy and provides thousands of hard-working Alaskans with good-paying jobs and opportunity for the future. I will continue to be a strong advocate for these resource-development jobs and economic opportunities in our state. However, given the special nature of the Bristol Bay watershed and the fisheries and subsistence resources downstream, Pebble had to meet a high bar so that we do not trade one resource for another. As I have been saying since August, Pebble did not meet that bar and, accordingly, the Corps rightly denied the permit. Throughout this process, I’ve emphasized to senior federal officials and Alaskans that this decision needed to be based on science and data, not politics. I want to thank the Army Corps and the Trump administration for acting accordingly, giving this permit a fair hearing through the regular process, and ultimately following the law and the record to deny the permit.”

What’s Next?

The Pebble Partnership CEO, John Shively, issued the following statement regarding the decision by the U.S. Army Corps of Engineers (USACE) to deny a permit for the Pebble project:

We are obviously dismayed by today’s news given that the USACE had published an Environmental Impact Statement (EIS) in July that clearly stated the project could successfully co-exist with the fishery and would have provided substantial economic benefit to the communities closest to the deposit. One of the real tragedies of this decision is the loss of economic opportunities for people living in the area. The EIS clearly describes those benefits, and now a politically driven decision has taken away the hope that many had for a better life. This is also a lost opportunity for the state’s future economy – especially at a time when Alaska is seeing record job losses from the impacts associated with Covid.

“The Pebble Deposit contains minerals such as copper that are in the national interest as they will be necessary to support the nation’s transition to more renewable sources of energy and a lower carbon future. President-elect Biden has stated that increasing domestic copper production will be an important step in meeting these goals.

“Since the beginning of the federal review, our team has worked closely with the USACE staff to understand their requirements for responsibly developing the project including changing the transportation corridor and re-vamping the approach to wetlands mitigation. All of these efforts led to a comprehensive, positive EIS for the project that clearly stated it could be developed responsibly. It is very disconcerting to see political influence in this process at the eleventh hour.

“For now, we will focus on sorting out next steps for the project including an appeal of the decision by the USACE.”

It’s pretty rich of Shively to cry political influence at this point given all we know about Pebble’s actions around this project. We will have to wait and see what they do after they have finished sorting out the next steps.

In their joint statement, Murkowski and Sullivan, made it clear they support the Army Corps’ decision to deny the permit. Should Pebble decide to try and resurrect this project their statements of opposition will be put to the test.

Time will tell. Until no reasonable avenues exist to permit this project eternal vigilance will be the order of the day.

Bristol Bay / Pebble Mine – Murkowski Appropriations Statement

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There continues to be a fair amount of discussion about the fate of the Pebble mine. One development worth looking at carefully is the statement Alaska Senator Lisa Murkowski, who chairs the Senate’s Interior Appropriations committee, included with the committee’s bill.

EXPLANATORY STATEMENT FOR THE DEPARTMENT OF THE INTERIOR, ENVIRONMENT, AND RELATED AGENCIES APPROPRIATIONS BILL, 2021
SUMMARY OF BILL

Protection of Resources in Bristol Bay, Alaska.—The Committee continues to monitor the Federal permitting process for the proposed Pebble mine project in southwest Alaska, including the efforts of the Department of the Interior, EPA, and independent subject matter experts to help protect the world-class ecosystem and salmon fishery in the Bristol Bay region from unavoidable adverse impacts. The Committee concurs with the U.S. Army Corps of Engineers’ [Corps] assessment of August 24, 2020, that ‘‘the project, as proposed, cannot be permitted under Section 404 of the Clean Water Act’’ and appreciates the administration’s commitment to a decision guided by sound science.

The Committee notes that on August 20, 2020, the Corps separately sent a letter to the Pebble Limited Partnership outlining mitigation requirements for the project. The Corps requested a mitigation plan within 90 days that addresses both in-kind and compensatory requirements, which the Committee believes set an appropriately high bar for this unique project. In the absence of a valid mitigation plan that has received all necessary approvals at the Federal and State levels, the Committee urges the agencies to continue to withhold the applicant’s Clean Water Act permit.

If the Pebble Limited Partnership is unable to provide a full and functional compensatory mitigation plan that meets all requirements within the Corps’ requested 90-day timeframe, the Committee encourages the agencies to proceed to a decision denying the permit for the project.

Reaction from the folks who work on this issue day-to- day were not especially laudatory of the action.

I think if we would’ve seen something that essentially recommended no spending be allowed in the next fiscal year to move forward with the Pebble project, that would’ve been a little more reassuring. But this doesn’t do that,” Bristol said. “It just seems to sort of describe the situation as it is right now.”

Tim Bristol, executive director of SalmonState

According to an Associated Press report, Murkowski spokeswoman Karina Borger said the senator wanted the Corps to know it must hold the mitigation plan to a high standard and Pebble should end the process if the requirements cannot be met.

The language is a clear shot across the bow of the EPA. Hopefully, with the election behind us the U.S. Army Corps of Engineers will let science rather than politics drive the decision. But if you are following the news you know anything could happen and the administration may decide to flip off the myriad interests who oppose this project.

We will have to wait and see what the Corps decides to do with Pebble’s mitigation plan. The people I talk to say the bar set by Corps is almost impossible to meet. If the Corps accepts it, and it doesn’t “provide a full and functional compensatory mitigation plan that meets all requirements” the ball will be in Senator Murkowski’s court.

Time will tell. In the meantime it can’t hurt to send a message to Senator Murkowski.

Sources:
https://www.murkowski.senate.gov/press/release/murkowski-unveils-interior-environment-bill-
https://apnews.com/article/alaska-bills-lisa-murkowski-appropriations-5199732752e804c15e0c0b8854171e2d
https://www.alaskapublic.org/2020/11/10/murkowskis-latest-pebble-action-disappoints-mine-opponents/

Alaska’s “Salmon Forest” is in Jeopardy

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Removing Roadless Protections for the Tongass National Forest is a Mistake

In late October, the U.S. Forest Service (USFS) issued a final rule and record of decision exempting Alaska’s Tongass National Forest from the 2001 Roadless Area Conservation Rule (2001 Roadless Rule). The 2001 Roadless Rule prohibited timber harvest and road construction in designated inventoried roadless areas within our national forests. The Administration’s action removes protection of approximately 9.4 million acres of the 16.9 million acre Tongass National Forest – thus making more than half of the Tongass available for logging and other resource development. Additionally, it would bring 188,000 acres of old growth forest to the table that was safeguarded by the roadless rule within the 2016 Tongass National Forest Land and Resource Management Plan.

The Tongass National Forest is the largest national forest in the U.S., the world’s largest intact temperate rainforest, and a bulwark against climate change. It holds some of the largest old growth trees in the world, watersheds that provide clean drinking water, essential wildlife habitat, and outstanding outdoor recreation opportunities that should be kept safe for generations to come.

The Tongass is part of the fabric of Alaskan culture and raises more salmon – including all five of North America’s Pacific salmon species – than all other national forests combined. If you are an angler, commercial fisherman, or care about fish, that is a big deal. The fishing and tourism industry that relies on the Tongass accounts for more than 25 percent of local jobs in the region.

By comparison, timber harvesting provides one percent of southeastern Alaska’s jobs, compared with seafood processing’s eight percent and tourism’s 17 percent. A report recently released by Taxpayers for Common Sense documented 40 years of money-losing timber sales in the Tongass National Forest. Its report notes:

Since fiscal year 1980, the USFS has lost approximately $1.7 billion or $44 million per year on average. USFS could end up losing nearly $190 million in the Tongass over the next five years from planned sales, and more if currently roadless areas are opened to logging.

Since this is federal land owned by all Americans, not only will U.S. taxpayers foot the bill, but most of the timber would also go overseas to China. In an opinion piece published in July in the Washington Times, Ed Rollins, longtime Republican campaign consultant and current chairman of the Great America PAC, wrote, “The U.S. Forest Service (USFS) is on the verge of determining whether public lands are managed for the benefit of Americans or for Chinese economic interests.” He continues:

When you break it down at the simplest level, American taxpayers are paying for the economic benefits of China — and they aren’t happy about it. And the Forest Service proposal to drop roadless area protections on the Tongass will only exacerbate the problem.

Commercial fishing is also foundational to Alaska’s economy. The Tongass is home to the world’s largest salmon population. Linda Behnken, executive director of the Alaska Longline Fishermen’s Association, said:

The Tongass National Forest is the largest and most extensive temperate rainforest in the world. It is also Southeast Alaska’s SeaBank. That SeaBank supports the southeast economy with annual dividends in seafood, recreation, wildlife, water and forest products. The dividends and values from SeaBank are paid annually, provided we safeguard the natural capital of the forest. The global ecosystem service values annually provided by the Tongass are between $125-145 trillion. That value increases every year as climate change raises the stakes on carbon sequestration and intact, functioning ecosystems. Why would we risk the forest for the trees? The roadless rule is critical to protecting the Tongass SeaBank for future generations.

Austin Williams, director of law and policy for Trout Unlimited in Alaska, writing on Trout Unlimited’s blog, noted the economic importance and the public’s support to roadless protections:

This is the latest effort by politicians catering to a failing old-growth logging industry that refuses to adapt to the changing global economy, fails to recognize the Tongass is much more valuable for its wild salmon than as a source of timber for foreign markets, and that persists only because of massive government subsidy. With any luck, this shortsighted decision won’t be on the books for long.

More than 96% of public comments on this proposed decision favored keeping the roadless rule in place. In some Alaska communities, every single comment submitted to the Forest Service wanted roadless areas protected. Tribes, small-business owners, hunters and anglers, subsistence users, scientists, and people from all walks of life spoke up in favor of fish, wildlife, beautiful scenery, and for putting an end to unsustainable clear-cut logging of our best remaining old-growth forest.

Hunters, anglers and outdoor enthusiasts have been vocal proponents of conserving Alaska’s roadless treasures. With their large populations of game and healthy fisheries, these public lands and waters are essential for Alaska’s outdoor economy. Land Tawney, president and CEO of the Backcountry Hunters and Anglers, calls upon the U.S. Department of Agriculture, which oversees the USFS, to consider other users of the public lands:

The backcountry habitat found in the Tongass is quite simply irreplaceable, a jewel in the crowning achievement that is our national forests system, and we as a nation will be poorer if we suffer its loss and weaken conservation standards for our roadless areas. U.S. roadless areas play a crucial role in the health of our big game populations, our iconic fisheries and our opportunities to find adventure and solace on our public lands. Together, sportsmen and women urge Secretary [of Agriculture] Sonny Perdue to listen to Alaskans, to hunters and anglers, to the business owners and community members who have overwhelmingly spoken up, again and again, for conservation of the Tongass.

While public lands issues may seem far afield from federal fisheries policy, everything in nature is interconnected. In fact, the Tongass and the roadless rule are not new issues for the Network’s leadership. Our executive director, Rob Vandermark, said:

In the years before joining the Network, both deputy director Tom Sadler and I worked to safeguard our national forests and the habitat they provide through the roadless rule. I’ve had the opportunity to spend much time in the Tongass and experienced its majesty – it is a natural treasure. There are a myriad of vital reasons to uphold these protections, not the least of which is the cultural and economic importance to the Network’s members, supporters and constituents. This action is contrary to President Teddy Roosevelt’s vision for the creation of our national forest system. I hope the incoming Biden Administration or Congress will quickly right this wrong.

The Network will continue to follow developments surrounding this issue and share updates as they become available.

Editors note: This article originally appeared on the Marine Fish Conservation Network’s “From the Waterfront” blog.

Bristol Bay/Pebble Mine – Mitigation Plan Filed.

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My friends at SalmonState put out an update last week. The mitigation plan has not been released to the public yet and the U.S. Army Corps of Engineers can take their time about making a decision. Some folks think the current administration will still do the right thing. I’m skeptical, but will be delighted to be proven wrong.

SalmonState: Pebble’s mitigation plan inherently flawed; veto only way to defend Bristol Bay

Anchorage, AK—Northern Dynasty Minerals, the parent company of the Pebble Limited Partnership, announced today [Nov. 16] that it has submitted to the U.S. Army Corps of Engineers the mitigation plan it hopes will allow its proposed open pit mine and toxic dump at the headwaters of Bristol Bay, Alaska to move forward. Bristol Bay is the planet’s greatest sockeye salmon run and has provided more than half the world’s sockeye salmon catch in recent years. Despite that, the area remains unprotected from destructive mining impacts. 

“You cannot ‘mitigate’ your way out of a toxic 200-year megamine at the headwaters of the world’s most important wild salmon habitat, which is pristine. This ‘plan’ is a continuation of a crooked process full of off-the-record, back-room deal conversations between the Pebble Limited Partnership, the Alaska District of the Army Corps of Engineers, politicians and political appointees,” said SalmonState executive director Tim Bristol. “The only way to defend the incomparable salmon resource of Bristol Bay — and to ensure fishermen, Tribes and Alaskans aren’t dragged through this rubber stamp ‘process’ all over again — is for the EPA to immediately veto the permit application through the Clean Water Act.” 

The Alaska District of the U.S. Army Corps of Engineers has a history of rubber stamping “mitigation” measures inconsistently and, at times, going against its own guidelines. It does not plan to make Pebble’s mitigation plan public until it has reviewed it and deemed it “compliant.”

Numerous independent mining experts and scientists have also identified the Final Environmental Impact Statement on which the mitigation plan is based as fatally flawed, which means the plan Pebble submitted would be grossly inadequate were mitigation even possible. 

Vote Public Lands and Waters

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With any luck this will be my last political post of this election. I hope that you will vote and take advantage of the opportunity we have in this country to make our preference for elected leaders known.

As has been my practice, I’ve written a letter to the editor of my local paper.

The land, water and wild things that inhabit it don’t get to vote, but you do. There is a clear choice with Joe Biden. If you enjoy the great outdoors, especially hunting and fishing on public lands, vote on their behalf and show an understanding and appreciation for the bounty of our public lands.

Read the full letter: https://www.newsleader.com/story/opinion/readers/2020/10/30/our-public-lands-deserve-our-vote/5980029002/

Politics has been a vocation and advocation of mine for more than 40 years. Never has an election in that span of time been more important for the future our country. I’ve made my choice.

To those I angered or annoyed, with my opinions or preferences, I apologize, I hope politics doesn’t define our friendship.

And know this, I will always support the chance for you to make yours.

The Navigable Waters Rule

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The saying goes something like this, “whiskey’s for drinking and water’s for fighting.” It is typically associated with ownership rights in the west. Still, for many years it has resonated with those of us who deal with the changing legal landscape and battlegrounds surrounding the Clean Water Act.

I’ve been working on or following the Clean Water Act jurisdictional issues for most of my conservation career. In 2003, I was the conservation director for the Izaak Walton League of America. We released a study titled “Jurisdiction Under the Clean Water Act: Implications of the SWANCC Decision” (copy available upon request.) Since then, there have been many twists and turns, making this one of the most contentious and complicated issues I’ve ever dealt with.

Where are we today?

In April 2020, the Environmental Protection Agency issued the “Navigable Waters Protection Rule: Definition of Waters of the United States,” aka the “Navigable Waters Rule.” undoing the Obama administration’s work. As Trout Unlimited noted, “This rule replaces a 2015 Rule, which clarified the extent of Clean Water Act protections for small streams and wetlands.  This new 2020 rule not only reverses the clarifications made in 2015 but further reverses protections that have been in place dating back to the 1970s.”

My friend Sam Lungren, MeatEater’s fishing editor, wrote a terrific article, Patagonia Will Sue Trump Admin. Over Clean Water Act, which not only explains the state of play today but gives a solid review of the history of how we came to the Navigable Waters Rule. As Lungren notes, Patagonia, a company I greatly admire, stepped into the arena and joined with Earthjustice in their lawsuit on behalf of the Pascua Yaqui Tribe, Quinault Indian Nation, Menominee Indian Tribe of Wisconsin, Tohono O’odham Nation, and Fond du Lac Band of Lake Superior Chippewa.

The Lawsuit

The lawsuit challenges and seeks to vacate two final rules promulgated by the EPA and the Army Corps of Engineers. The first, “Definition of Waters of the U.S.: Recodification of Pre-Existing Rules,” repealed the 2015 “Clean Water Rule” which defined the term “waters of the United States” in the Clean Water Act. The second, “The Navigable Waters Protection Rule: Definition of Waters of the United States,” replaced the Clean Water Rule and its predecessor rules with a definition of “waters of the United States” that, according to the filing, “substantially narrows the waters protected by the Act.”

The filing states; “The Navigable Waters Rule exceeds the Agencies’ statutory authority and is contrary to the Clean Water Act’s text, structure, objectives, and legislative history requiring broad protection of all the Nation’s waters, because its provisions exclude waters from the protections required and afforded by the Act.

“The Tribes also challenge the Repeal Rule and the Navigable Waters Rule as arbitrary and capricious because both rules are contrary to the evidence before the Agencies, including vast volumes of science and technical evidence in the administrative record and the uncontroverted findings made by the EPA and its own Science Advisory Board. The Agencies also failed to explain their decision to reverse prior regulations and failed to consider important aspects of the problem, including the effects on water quality and aquatic ecosystems of stripping protections for large numbers of waters, the ecological importance of protecting the excluded waters, and the effects of the reversal on the objectives of the Clean Water Act.

“These decisions are arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act.”

Threats to our water

Since my early days, I have relied on my friends at Trout Unlimited for their analysis, leadership and advocacy. It is no different in this case.

“The E.P.A.’s new policy comes with a price tag,” Chris Wood, president and CEO of Trout Unlimited, wrote in a recent op-ed in the New York Times with National Wildlife Federation CEO Collin O’Mara and former U.S. Fish & Wildlife Service director Dale Hall.

“When the E.P.A. stops protecting these streams and wetlands, states will have to foot the bill for regulatory oversight; many states may decide not to step in at all. When developers fill in wetlands, local communities will be on the hook for cleaning up more frequent flood damage. When headwaters are polluted, cities downstream will pay to treat their drinking water.”

Check out TU’s Clean Water Rule Update: April 2020 for more details. Read, Changes to the Clean Water Rule have big impacts on the ground for a look at why the rule is bad news for those of us who love our small stream fishing.