EPA, the Corps, and where to go for dinner

The U.S. Environmental Protection Agency (EPA), has been involved in discussion around the proposed Pebble mine for nearly a decade. Currently it is an official cooperating agency with the U.S. Army Corps of Engineers during a process to analyze whether to issue a Clean Water Act Section 404 permit to Pebble developers.

During the permitting process, cooperating agencies have provided comments on the Corps’ Draft Environmental Impact Statement (DEIS), which the Corps is seeking to address before it publishes a Final EIS – slated for early 2020. The EPA, in particular, raised significant concerns, stating that “the DEIS likely underestimates impacts and risks to groundwater and surface water flows, water quality, wetlands, aquatic resources, and air quality from the Pebble Project.”

So how do the Corps and cooperating agencies come to agreement over such concerns?

David Hobbie, the Corps’ chief of Alaska District’s Regulatory Division, explained that the Corps will meet with several cooperating agencies in mid-November to give feedback on their comments and explain how the Corps is addressing them. (For example, the agency has undertaken additional testing and modeling work on air quality and water quality.) As the lead agency in this process, the Corps makes the ultimate decision. “It’s like getting your kids together for dinner,” explained Hobbie during the Corp’s monthly media advisory. “You get five different opinions on where to go. At the end of the day, someone has to make the decision… that’s the Corps’ role…We will look at all the information and make the final decision on which is the best path to go.”

Assisting the Corps with this task is AECOM, the 3^rd party contractor selected to help complete the EIS as a major component of the National Environmental Policy Act (NEPA) review of the Pebble project. In its final proposal seeking the contract, AECOM laid out how it would accomplish the development of a final, legally-defensible EIS within 21 months. Regarding dealing with cooperating agency concerns during development of the draft EIS, AECOM wrote:

“Some cooperating agencies may express concern that the Preliminary Draft EIS does not meet their needs in some way or that it needs to be reissued for another cooperating agency review. AECOM’s senior advisors will support the USACE PM in finding ways to address agency concerns, move the process forward and maintain the schedule. It will be important to assess risk carefully to be sure this does not open the need for a Supplemental Draft EIS or legal challenge. AECOM will be available as needed to support the USACE PM. We also have other senior mining, NEPA, and planning staff available as needed, all of whom have experience resolving thorny issues raised by regulatory agencies.”

Elevation

If the Corps ultimately decides on a path that certain federal cooperating agencies don’t agree with, there are other mechanisms in place to elevate the decision-making. In 1992, the Corps signed Memoranda of Agreement with the EPA the Department of Interior (U.S. Fish and Wildlife) and the Department of Commerce (NOAA/National Marine Fisheries Service) on how to resolve CWA disputes. But those agencies have to write to the Corps within a certain timeframe to reserve that right.

The U.S. Fish and Wildlife Services submitted its “will affect letter” to the Corps by the initial deadline in July. In that letter the USFWS stated that: “We believe the project as proposed will have significant adverse impacts on important fish, wildlife, and aquatic habitats. We are advising the USACE in accordance with the procedural requirements of the 1992 404( q) MOA, Part IV .3(b ), that the proposed work will result in substantial and unacceptable impacts to aquatic resources of national importance. Consequently, we recommend that a permit not be issued for the project as currently proposed. We recommend more robust analysis be conducted to thoroughly identify, analyze, and reduce risks to these resources, and the USACE fully engage the resource agencies in mitigation and reclamation planning for the proposed mine.”

Although the EPA submitted critical comments on the EIS, it didn’t send a “will affect” letter in July. Instead, it asked for an extension of 90 days. This week the EPA asked for additional time before deciding to send the letter that would further portray the project as a risk to the environment. The Corps has agreed to a deadline of February 28, 2020, saying that should be long enough for the EPA and the Corps to resolve “all remaining issues.”

404(c) veto authority

In the end, however, EPA has final veto authority over the Corps’ decision to issue a CWA permit. This authority has been used sparingly over the years, but under the Obama administration, the agency used it to propose restrictions at the Pebble deposit. The propsal was removed earlier this year, a decision which led to lawsuits against the EPA by Alaska Native tribes and environmental organizations.

Whether the EPA would use its 404(c) veto authority related to the Pebble mine in the future is not known. The agency is currently in the process of writing new rules to limit these powers. A draft of those rules is anticipated to be released in November and will be open for public comment.