Next steps in the Pebble Army Corps appeal

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.

U.S. Army Corps of Engineers Alaska District Pebble Appeal Items for Review

Based on an April 24, 2023 Administrative Appeal Decision signed by Kirk E. Gibbs Brigadier General, U.S. Army Corps of Engineers, Pacific Ocean Division.
Reason For Appeal (RFA) I – Pebble argues: The Significant Degradation Finding is Contrary to Law and Unsupported by the Record.
I.C. – (portion) Concern: “The District identified the review area for the ROD as inclusive of the NFK, SFK, and UTC watersheds, but then made a quantitative statement about impacts within “the HUC 12” without identifying the HUC 12 or providing any additional explanation.Alaska District’s task: “Consider the scope of analysis under CWA 404(b)(1) and ensure that the Administrative Review accurately documents the analysis and conclusion, specifically as it relates to the quantitative analysis of the severity of impacts.”
RFA II – Pebble argues: The Significant Degradation Finding is Contrary to Law and Unsupported by the Record.
II.A – Concern: Pebble developers argue that the CMP (Compensatory Mitigation Plan) was Improperly Rejected Without Providing PLP an Opportunity to Correct the Alleged Deficiencies.Alaska District’s task: “The District should provide complete and detailed comments to the Appellant on the compensatory mitigation plan, allowing the Appellant to address those comments prior to finalizing the mitigation plan review. The District should also be mindful in the future about including in the administrative record memoranda or notes documenting conversations with applicants, particularly when the District is providing, or may be perceived as providing specific direction to an applicant.”
II.B.1 - Concern: Pebble developers argue that the “Alleged CMP “Deficiencies” are Baseless: Port Site Mitigation”
II.B.2 – Concern: Preservation Waiver
II.B.3 – Concern: Level of Detail and “Missing” Documentation
II.B.5 – Concern: Monitoring
RFA III – Pebble argues: The Public Interest Decision is Contrary to Law and Unsupported by the Record.
III.A.1 – Concern: “Although the District’s ROD reflects adequate information drawn from the FEIS and from comments received to support most of its conclusions relative to the economics PIR factor, the discussion of post-closure effects as detriments may have unduly weighted the analysis of the economics PIR factor. In addition, there is no explanation in the ROD for why the Needs and Welfare of the People PIR section describes jobs and increased income as brief duration.”Alaska District’s task: “This RFA is remanded to the Alaska District Engineer for reconsideration, additional evaluation, and documentation sufficient to support the decision. Specifically, the District should consider its PIR analysis relative to the Needs and Welfare of the People PIR factor and adequately describe its determinations of the extent and permanence of the benefits and detriments. Additionally, the District should re-evaluate the analysis under the Economics PIR factor and the assignment of post-project ‘expiration of benefits’ as economic detriments.”
III.A.3 (portion) – Concern: “The appellant states that the District downplays the public need for the Project by stating that alternative locations exist to produce these minerals within the US.”Alaska District’s task: “The District should re-evaluate and consider this portion of the PIR and provide adequate discussion of alternatives it has identified as meeting the regulatory requirement of “practicability of using reasonable alternative locations and methods.”
III.B.1 – Concern: “The District included the spill risk analysis in the FEIS, acknowledged the risk was low in the ROD and addressed it in the PIR due to public concern. However, the District may have unduly weighted the potential for catastrophic failure as “likely” while also stating that it is not reasonably foreseeable.”Alaska District’s task: “The District should consider how it addresses the potential for catastrophic failure and clearly support its analysis in the decision, based on information in the administrative record.”
III.B.3 – Concern: “The District states in more than one location in the ROD that damages to fisheries are not anticipated, so citing potential damages to fisheries, specifically related to catastrophic or human error events, as a basis for an adverse PIR conclusion is contradictory.”Alaska District’s task: “The District should consider how it addresses the potential for catastrophic failure and damages to fisheries, and clearly support its analysis in the decision based on information in the administrative record.”

Side-by-side Timeline: Recent USACE and EPA actions

U.S. Army Corps – Clean Water Act 404 permitEPA Clean Water Act 404 (c) Final Determination
November 2020 USACE denies permit.
January 19, 2021 – Pebble developers appeal the decision and it is sent to USACE Pacific Ocean Division (POD) for review.
May 20, 2021 – Alaska District provides the Administrative Record to the POD. The “AR” includes all the documents and resources used by Corps personnel to make its permit decision.
May 26, 2022 – EPA announces a revised 404(c) Proposed Determination, with public comment extended to September 6.
July 21-22, 2022 – Virtual site visit and appeal conference between POD personnel and Pebble Limited Partnership.
December 1, 2022 – EPA announces Recommended Determination.
January 20, 2023 – U.S. EPA issues Final Determination under the Clean Water Act 404(c).
April 24, 2023 – POD determines that some aspects of the Pebble appeal have merit. It “remands” these back to the Alaska District for review.
July 28, 2023 – After multiple extensions, the Alaska District must create a plan by this date for conducting the review.