Scott Pruitt is less than a week into his role as Administrator of the U.S. Environmental Protection Agency, but the Pebble project has already come across his desk. Today, Lamar Smith (R-Texas), the Chairman of the Committee on Science, Space and Technology, sent Pruitt a letter congratulating him on his appointment and requesting that he rescind the EPA’s 2014 decision to use Section 404(c) of the Clean Water Act pre-emptively to seek protections for Bristol Bay.
Smith has been outspoken against what he sees as agency decisions based on politics, not science. The Committee’s interest in the EPA’s actions in Bristol Bay goes back to 2013, when its Oversight Subcommittee held a hearing about the agency’s Bristol Bay Watershed Assessment. EPA had developed the Watershed Assessment to understand the watershed and its resources before determining whether to use its 404(c) authority. Two additional Committee hearings followed: one in 2015 and another in 2016, both addressing EPA’s pre-emptive use of Section 404(c) at the Pebble deposit.
EPA began the process of using its Section 404(c) Authority in February 2014 to protect the salmon fishery in Bristol Bay “from the potentially destructive impacts of the proposed Pebble Mine.” In July 2014 the agency published its Proposed Determination, detailing restrictions for the disposal of dredge and fill in the area near the Pebble deposit. The agency stated at the time that it based these recommendations on a “conservative analysis” of potential risks of adverse effects.
Among other objections, critics found fault with the EPA’s analysis, since it was not based on a specific mine plan. (A plan has yet to be released by developers).
EPA was in the process of reviewing hundreds of thousands of public comments on the Proposed Determination in November 2014, when U.S. District Court Judge H. Russel Holland ordered the agency to stop work on activities related to the 404(c) process until litigation with the Pebble Limited Partnership (PLP) could be resolved.
More than two years later, PLP and EPA are still working toward a resolution.
At any point in the 404(c) process, the EPA can decide that further review is not necessary. If the process were to proceed ahead, EPA would still need to prepare a Recommended Determination and have a consultation with stakeholders before releasing a Final Determination. However, Pebble developers anticipate that Administrator Pruitt will remove the Proposed Determination, opening up a clear pathway to permitting through the standard NEPA process and making the project more attractive to potential investors.
The outgoing EPA Administrator, Gina McCarthy, had visited Bristol Bay communities in one of her first trips after being appointed to the post in 2013. During that visit, she heard directly from residents, many of whom are opposed to the development of the Pebble mine.
It should be noted that the 404(c) process did not prohibit PLP from submitting a permit application, but did block PLP from receiving a permit during the 404(c) process.
PLP estimates that permitting the proposed Pebble mine will take 3 to 4 years.