The Middle River Group, LLC

fly fishing, conservation and politics.

U.S. Army Corps of Engineers

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 (Corps) notified the Pebble Limited Partnership and the public that they had denied the application for the permit for the Pebble Mine project. The Corps said the project would not comply with the Clean Water Act and would be “contrary to the public interest.” The record of decision goes into the details of why they made the decision they did.

This is excellent news and a possible fatal wound to the Pebble project. Given the history of the project, one has to wonder whether any investors would be willing to finance this project.

The Corps also provided a memo for the record summarizing their findings for the compensatory mitigation plan. The memo listed nine elements required to be included in a complete compensatory mitigation plan. The plan submitted by Pebble was found to be noncompliant with all nine elements. You can download and read the Corps memo here.

Following the announcement, U.S. Senators Lisa Murkowski and Dan Sullivan issued a joint statement. Murkowski said:

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. 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.

Sullivan said:

I welcome the Army Corps’ Record of Decision to deny the permit. 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.

The Pebble Partnership CEO, John Shively, issued the following statement regarding the decision by the Corps, referred to in the statement as 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 sorting out the next steps.

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

There is good reason to believe this project will not happen. Still, history has shown that the backers are seemingly relentless in their desire to push forward. We will continue to watch closely and keep you informed.

Note: This article also appeared on the Marine Fish Conservation’s blog.

Pebble Mine Update: What the Army Corps Did and Didn’t Do

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If you are following the saga of the proposed Pebble Mine in Bristol Bay, Alaska, you would be forgiven if you thought recent action by the U.S. Army Corps of Engineers (USACE) was the death knell for the proposed mine.

On August 24, the USACE released a letter to the Pebble Limited Partnership. The U.S. Army’s press office proclaimed, “Therefore, the Corps finds that the project, as currently proposed, cannot be permitted under section 404 of the Clean Water Act.”

In reality, the USACE essentially kicked the can down the road. The letter to the Pebble Limited Partnership informed them, “As part of the [Record of Decision] the [Alaska District of the USACE] made Clean Water Act Section 404(b) (1) factual determinations that discharges at the mine site would cause unavoidable adverse impacts to aquatic resources and, preliminarily, that those adverse impacts would result in significant degradation to those aquatic resources.” The Alaska District of the USACE determined that Pebble Limited Partnership would need mitigation measures within the Koktuli River Watershed, where the mine potentially will be located, for all direct and indirect impacts on aquatic resources caused by the mine’s discharges.

The letter went on to outline the ways those damages could be mitigated:

There are three approved mechanisms for providing compensatory mitigation, which include mitigation banks, in-lieu fee programs, and permittee-responsible mitigation with preference, in that order. Your mitigation plan may include a combination of means and mechanisms but must comply with all required components of Rule and be found sufficient to offset the unavoidable adverse impacts to the aquatic resources identified above.

Some reactions critics of the project from both sides of Capitol Hill were less than laudatory of the action. Senator Joe Manchin (D-WV) stated :

A mitigation plan to make up for unavoidable damage from the Pebble Mine is not enough. The Final Environmental Impact Statement for Pebble Mine did not assure me the pristine Bristol Bay region of Alaska, which is home to the world’s most productive salmon fishery, supports 14,000 jobs and generates $1.5 billion of revenue annually, would be sufficiently protected. I again urge the Administration to completely veto a Clean Water Act permit for this project.

Rep. Jared Huffman (D-CA) said :

Delaying the permit for the Pebble Mine is welcome news, but let’s be clear: the only reason this environmental atrocity came this close to happening is because the Trump administration is a favor factory for polluting industries. The previously rejected permit was revived and fast-tracked by this administration, and the only reason they finally hit the pause button is because – thankfully – some individuals close to President Trump made a personal appeal. We can welcome the outcome, but let’s not confuse any of this with environmental stewardship or good government.

This letter did not come as a surprise to the Pebble Limited Partnership. The company responded:

The letter we received today is a normal letter in the permitting process and we are well into an effort to present a mitigation plan to the USACE that complies with the requirements of their letter. A clear reading of the letter shows it is entirely unrelated to recent tweets about Pebble and one-sided news shows. The White House had nothing to do with the letter nor is it the show-stopper described by several in the news media over the weekend.

Now that dust has settled, let’s take a look at the facts included in the Corps’s letter, which should send chills down the spine of anyone who still thinks it is a good idea to permit this mine.

The letter tells us what is at stake:

Therefore, the District has determined that in-kind compensatory mitigation within the Koktuli River Watershed will be required to compensate for all direct and indirect impacts caused by discharges into aquatic resources at the mine site. Direct and indirect impacts at the mine site total 2,825 acres of wetlands, 132.5 acres of open waters, and 129.5 miles of streams.

The District has also determined that compensatory mitigation is required for unavoidable adverse impacts to aquatic resources from discharges associated with the transportation corridor and the port site. Direct and indirect impacts associated with the transportation corridor and port site total 460 acres of wetlands, 231.7 acres of open waters, and 55.5 miles of streams.

Let me help you with the math. Here are the totals for what’s at risk:

  • 3,285 acres of wetlands
  • 364 acres of open waters
  • 185 miles of streams

So somewhere, somehow, the Pebble Limited Partnership is going to mitigate all that damage. As they said, “We will share more details of our initial plan as they become more defined.”

They have until November 20 to do that, although they seem to think it may happen sooner. “Based on our understanding of the substance of the letter, our discussions with the state, our substantial work in the field and our discussions with the USACE we believe our final Comprehensive Management Plan submission will be submitted within weeks and will satisfy all of the requirements of the letter.”

We shall see.

Here’s the rub. Bristol Bay is unique. How will that uniqueness be mitigated? How do you mitigate the loss of the world’s best salmon run?

On August 31, a letter from Representatives Huffman and Peter DeFazio (D-OR) and signed by 31 of their colleagues to EPA administrator Andrew Wheeler, made the point, “There is no level of compensatory mitigation that would be sufficient to address the mine’s irreversible harm to the pristine environment that exists in Bristol Bay.”

The letter went on to ask “that the EPA exercise its authority under the Clean Water Act and oppose the flawed Environmental Impact Statement.”

Let’s hope the administration comes to realize that, as the late Senator Ted Stevens of Alaska said, “This is the wrong mine in the wrong place,” and vetoes the Clean Water Act permit. If the USACE and Environmental Protection Agency don’t see the light, hopeful Congress will make them feel the heat.

UPDATE (Oct 30, 2020): Tim Sohn writing in Outside Online, gives a terrific, recap, analysis and update on the state of play in Bristol Bay.
https://www.outsideonline.com/2418304/pebble-mine-tapes-election-explainer.

Your comments questions and other witty repartee are welcome around the Campfire.

Note: This article (pre update) originally appeared on the Marine Fish Conservation Network’s From the Waterfront blog.