EPA plans to issue a revised 404(c) Proposed Determination
On January 27, the U.S. Environmental Protection Agency (EPA) announced its intent to issue a revised version of a Clean Water Act 404(c) Proposed Determination regarding the Pebble deposit. EPA notified Pebble developers and the U.S. Army Corps of Engineers directly “to ensure there is ample opportunity for full consideration of available information to determine next steps before May 31, 2022,” the agency’s deadline for completing the revision.
EPA first issued a Proposed Determination nearly eight years ago. The 2014 version outlined restrictions on the discharge of dredge and fill materials into certain waters in the Bristol Bay watershed near the Pebble deposit, based on its determination that these activities “could result in unacceptable adverse effects on ecologically important streams, wetlands, lakes, and ponds and the fishery areas they support including spawning and breeding areas.”
Litigation by Pebble Limited Partnership stalled the CWA 404(c) process as the EPA was reviewing a record-setting number of public comments on the initial Proposed Determination.
In December 2017, Pebble developers applied to the Corps of Engineers for a CWA 404 permit. That permit application was denied in November 2020 and is currently under appeal. During the permitting process, new information about the project became available and the EPA is reviewing that material. In her letter to the Corps and developers, Michelle Pirzadeh, Acting Director of EPA’s Region 10, said that, “based on our evaluation to date of available information, EPA Region 10 continues to have reason to believe that the discharge of dredged or fill material associated with mining the Pebble deposit could result in unacceptable adverse effects on important fishery areas.”
Pirzadeh also noted that another company, Chuchuna Minerals Corporation, has been informed of EPA’s intent, since that company has mining claims near some of the waters that would be affected by the new Proposed Determination.
Enacting 404(c) protections is rare, and there is a set process to be followed. According to the 404(c) regulations, affected parties have 15 days (in this case by February 11, 2022) to provide information “to demonstrate that no unacceptable adverse effects to fishery areas would result from discharges associated with mining the Pebble deposit, or that actions could be taken to prevent unacceptable adverse effects to waters from such mining.”
Also as part of its CWA 404(c) process, EPA has notified Bristol Bay tribes and some Alaska Native Corporations that it is beginning consultation with them (if desired). The agency aims to complete those consultations by April 2022.
After the Proposed Determination is published, there may be a public review and commenting period. According to information on EPA’s Bristol Bay web page, the agency will “provide notice of any public review and comment opportunity that may be determined to be appropriate as part of next steps in this process.”
See a map of mining claims in the Pebble deposit area
Pebble Watch chart of EPA 404(c) process in Bristol Bay
Timeline of events related to EPA, Bristol Bay and 404(c) protections (through 2019)
EPA extends decision-making deadline for Bristol Bay protections