What is the Proposed Determination?
In July 2014, after analyzing the Bristol Bay Watershed and the effects of large-scale mining in the Pebble deposit area, the EPA determined that restrictions to development were warranted in order to protect the health of the watershed. As part of a longer 404(c) process, EPA created a selective set of restrictions and published these in a “Proposed Determination.” At the time, EPA concluded that developers had not proved that there would be no unacceptable effects from disposal of dredge and fill materials resulting from mining operations at the site. In addition, EPA said that mitigation plans were not adequate.
Read Pebble Watch’s overview of the Proposed Determination for more details on the document.
What is the current status of the Proposed Determination?
The EPA has proposed to withdraw its Proposed Determination, published in 2014 stipulating restrictions for large-scale mining at the Pebble deposit in Bristol Bay. Public comments were accepted through 10/17/2017.
Has anything changed to alter EPA’s Bristol Bay Watershed Assessment or Proposed Determination?
No. Developers have not submitted a mine plan or a permit application that would provide additional information on the project, although neither were precluded by EPA’s 404(c) process or the litigation. EPA’s decision to propose restrictions at the Pebble deposit was informed by its 3-year study on Bristol Bay’s watershed, which developers contended was flawed. Under the settlement terms, the EPA can continue to use the Bristol Bay Watershed Assessment without limitation.
So why is the EPA proposing to withdraw the Proposed Determination?
It is obligated to under the terms of a recent legal settlement with PLP. Litigation that developers introduced in 2014 resulted in a temporary injunction against the EPA’s 404(c) process. In May 2017, EPA and PLP agreed on settlement terms, which included that the EPA “initiate a process to propose to withdraw the Proposed Determination.”
New leadership under the Trump administration makes EPA more favorable to PLP’s point of view. PLP had long argued that the EPA had prejudged the Pebble project and was using its authority under the Clean Water Act improperly. It wanted to get back to what it called “a fair and normal process.” New EPA Administrator Scott Pruitt echoed these concerns in response to the May 2017 settlement by saying, “We are committed to due process and the rule of law, and regulations that are ‘regular’… The agreement…will provide Pebble a fair process for their permit application and help steer EPA away from costly and time-consuming litigation.”
What is EPA’s specific rationale for proposing to withdraw the Proposed Determination?
- Provides PLP with additional time to submit a Clean Water Act Section 404 permit with the U.S. Army Corps of Engineers.
- Potentially allows the Army Corps permitting process to initiate without having an open and unresolved section 404(c) review.
- A withdrawal of the Proposed Determination would remove any uncertainty, real or perceived, about PLP’s ability to submit a permit application and have that permit application reviewed.
- EPA retains the right under the settlement agreement to ultimately exercise the full extent of its discretion under section 404(c), including the discretion to act prior to any potential Army Corps authorization of discharge of dredged or fill material associated with mining the Pebble deposit.