More than ten years ago, the U.S. Environmental Protection Agency (EPA) began the process of assessing the Bristol Bay Watershed to determine whether it should implement protections for the region under its Clean Water Act 404(c) authority. Today the question of EPA protections is still unanswered – and will be for another six months.
This week the agency announced that it needed more time to decide whether it will recommend protections – and has extended its timeline for doing so until May 31, 2022.
There is a clear process for using 404(c) authority, with specific steps, public input periods, and timelines. In this case, there have been several stops and starts along the way, which Pebble Watch has reported on in detail.
In 2014, EPA proposed protections for Bristol Bay in the form of a “Proposed Determination.” (See our guide for a refresher). While it was analyzing public comment on its proposal, Pebble Limited Partnership began litigation that was ultimately settled in 2017. The settlement called for the EPA to begin proceedings to withdraw the Proposed Determination, but that it could still use the Bristol Bay Watershed Assessment. EPA received a million comments on the proceeding; 99% were against withdrawing the proposed protections.
The EPA suspended the withdrawal in 2018, then finalized it in 2019. That same year a group of twenty tribal, fishing, environmental and conservation groups brought litigation against the EPA for withdrawing the 2014 Proposed Determination. That suit was resolved last month when the U.S. District Court for the District of Alaska granted EPA’s own request to vacate the agency’s decision to withdraw the proposal – so that the agency could reconsider its action.
With that decision, the 2014 Proposed Determination is reinstated, and the CWA section 404(c) review process has been reinitiated. The next step in process requires the Region 10 Regional Administrator to, within 30 days, decide whether to withdraw the 2014 Proposed Determination or prepare a recommended determination.
However, the EPA is saying it needs more time than 30 days to fully review new information that has become available since 2014. According to the agency, that includes:
- voluminous public comments EPA received on the 2014 Proposed Determination
- technical information contained in Pebble Limited Partnership’s CWA section 404 permit application and updated mine plan
- analysis developed during the NEPA process and contained in the U.S. Army Corps of Engineers’ final Environmental Impact Statement and permit denial
- new and potentially relevant science and technical information produced through other contemporaneous efforts
What can we expect after the May 31, 2022 deadline? It seems unlikely the EPA would choose to simply withdraw the 2014 Proposed Determination after another round of reviews. It is more likely to revise it or move to the next step: a Recommended Determination.
Either of those choices brings permanent protections for Bristol Bay another step closer to reality.