It’s been nearly three months since the Pacific Ocean Division (POD) of the U.S. Army Corps of Engineers told the Alaska District it would have to revisit portions of its November 2020 decision to deny Pebble mine developers a key Clean Water Act 404 permit.
Pebble developers had appealed the Alaska District’s decision in January 2021 and personnel from the Corps’ Northwest District (delegated by POD) reviewed a voluminous administrative record to determine whether any of their arguments had merit. It concluded that some arguments did, and so the POD remanded the permit decision “to the Alaska District Engineer for reconsideration, additional evaluation, and documentation sufficient to support the decision.”
So far, the Alaska District has not finalized its plan for how it will proceed with this review. It has extended its timeline for doing so twice. Friday, July 28, is now the anticipated completion date.
What potential factors could be affecting the Alaska District’s deliberative process?
- Changing leadership, busy personnel. The Alaska District recently had a change of command. Although anticipated every few years, it’s also a time for adjustment for the Corps as a new Commander takes over. Pebble is just one of multiple projects the District handles, so personnel need to be assigned to manage the review. According to a Corps’ spokesperson, Shane McCoy will serve as the action officer for the remand. McCoy was the project manager throughout the development of the Environmental Impact Statement for the proposed Pebble project, so is fully familiar with the project and the Corps’ related documents. However, David Hobbie, who was the chief of the Regulatory Division during the Pebble 404 application process, has departed the Alaska District. Sara Longan is now in this role.
- Out of practice. Getting a remand of a permit denial appeal is rare. The last remand was 13 years ago. Aside from the Pebble permit denial, there have been seven previous permit denial appeals. These took place between 2003 and 2010. Just three of them were remanded back to the Alaska District for review. Of those, one was issued a permit.
- First of its kind. The Corps will be reviewing a permit decision for a project that has been essentially blocked by the U.S. Environmental Protection Agency’s January 2023 Final Determination that restricts certain dredge and fill activities at the Pebble deposit. In its instructions to the Alaska District, the POD states that, “the Alaska District must review the appeal decision in light of the EPA’s Final Determination as the District considers its next steps.” However, it also indicates that the “remand decision concludes the USACE administrative appeal process, which is independent of the EPA’s Final Determination.” How – or whether – the Alaska District will take the EPA decision into account is unclear.
- Controversy and legal considerations. When going through the permitting process, one of the clear goals for the Corps has been to create a “legally defensible” decision. This is a time-intensive effort and the controversial nature of the Pebble project increases the pressure to ensure that all aspects of the process are conducted according to regulation. This likely includes the plan for how the Alaska District will review, evaluate and provide documentation to support its Record of Decision.
What will the Corps be reviewing?
There were five reasons included in the PLP administrative appeal. The Pacific Command determined that most of Pebble Limited Partnerships reasons did not have merit. There were portions of the first three reasons that did. We’ve summarized them here, with a description of how the POD recommends that the Alaska District address them.
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