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RDC's Comment Letter

Action Alert: Support the EPA's withdrawal of the Proposed Determination of the Pebble Deposit Area
Comment Deadline was October 17, 2017

Overview:

The Environmental Protection Agency (EPA) has released a proposal to withdraw its July 2014 Proposed Determination on the Pebble Deposit Area. This proposed determination was a clear overreach and an attempt to assess the effects of a potential mining project, without the project plans.

In 2010, the EPA was petitioned to use its authority under Section 404(c) of the Clean Water Act (CWA) to preemptively veto any dredge or fill permits in wetlands associated with mining and the Pebble Project in Southwest Alaska. Tribes closer to the project asked EPA to refrain from such action until a formal permit application has been submitted and the permitting process under the National Environmental Policy Act (NEPA) initiated. Having never used its authority preemptively, the EPA decided instead to conduct a watershed assessment to help "inform its decision" on the issue. The EPA study began in February 2011, and completed the assessment on an area the size of West Virginia in less than one year. Previous watershed assessments conducted on smaller areas have taken years to complete. 

The CWA does give the EPA authority to veto other agencies’ approval of permits, however, it is unprecedented that the EPA would administer this authority in advance of any permit application. Moreover, the agency has rarely used its veto authority and never in advance of permits being issued by other agencies.

The proposed determination is not based on actual mine plans. It focuses on the effects of a mining project that has not been proposed, and for which key engineering solutions, environmental safeguards, and mitigation measures have not been provided. This is a deeply flawed speculative approach.

The State of Alaska, many statewide business associations, including RDC, and Native village and tribal organizations in the area have opposed the EPA’s actions until there is a formal permit application to properly evaluate the project, and a thorough environmental impact statement is completed.

A copy of the proposed determination and Bristol Bay Final Report 2014 is available online at: www.epa.gov/bristolbay

Public meetings:

October 11 in Dillingham, 6:00-9:00 p.m., Dillingham Middle School Gym

October 12 in Iliamna, 1:00-4:00 p.m., Old Crowley Hangar, Iliamna Airport

Action requested:

Please write to the EPA in support of withdrawal of the proposed determination. The withdrawal proposal is a good step to reverse the undermining of existing regulatory processes and federal overreach. The public comment period will run through 7:59 p.m. October 17, 2017.

Submit comments online: Reference Docket #EPA-R10-OW-2017-0369: http://www.regulations.gov

Send an email to: [email protected], include Docket #EPA-R10-OW-2017-0369 in the subject line.

Mail to:
Water Docket, Environmental Protection Agency
Mail Code 28221T
Attn.: Docket #EPA-R10-OW-2017-0369
1200 Pennsylvania Ave., N.W.
Washington, DC 20460

Additional points to consider in your comments: 

  • A preemptive decision, prior to permit or project application and completion of the National Environmental Policy Act (NEPA) process, is unacceptable, whether it be approval or denial of any project in any industry.
  • The proposed determination ignored existing processes, undermining agency responsibilities on both the state and federal level. Further, the EPA does not have the authority under the Clean Water Act to preemptively block development in the absence of a permit application.
  • The EPA must withdraw its proposed determination because it was based on an untested, ad hoc analysis that is not sanctioned by the CWA or NEPA. Once the NEPA process is initiated, the U.S. Army Corps of Engineers will prepare an Environmental Impact Statement based on project plans.
  • Any potential 404(c) actions against the Pebble Project are premature. The project has not yet been finalized and no permit applications – including detailed plans and environmental mitigation strategies – have been submitted to government agencies, nor has the NEPA process been initiated. As a result, the current assessment and any preemptive action would deprive government agencies and stakeholders of the specific information, science, and rigorous reviews that would come out of the multi-year NEPA process.
  • Every project, no matter the size or location, should have an opportunity to be reviewed under existing legal processes. In the case of mining, there are more than 60 major permits and hundreds more from local, state, and federal agencies that must be successfully obtained. If the process determines a project as designed cannot protect the environment and other resources, it will not advance. The process will not permit one industry or resource to advance at the expense of another.
  • The House Oversight Committee in 2015 concluded that “EPA’s use of a preemptive veto (at Pebble) was unprecedented and without a legal basis.” The Committee described EPA’s course of action as “an unprecedented change in the agency’s process for regulating resource and development projects,” and called on EPA to “cease all preemptive 404(c) activity” to allow for the normal permitting process to take place.
  • Any 404(c) action outside the existing permitting process would be an extreme case of federal overreach and an assault on Alaska sovereignty. The Pebble deposit is not located on federal land, nor inside a refuge or park. It is located on state land designated for mineral exploration. The State of Alaska depends on the responsible development of natural resources on its lands to diversify and support its economy.
  • Until an application is filed describing the project in detail and an Environmental Impact Statement is completed, the EPA is prematurely determining adverse impacts based on hypothetical assessments and inapplicable modeling.
  • The fate of a project, including Pebble, cannot be rationally decided without consideration of the full social, economic and environmental impacts of the project. This information will be developed through the rigorous NEPA process.
  • The actions of the EPA undermine existing regulatory processes and set a dangerous precedent for future projects. If the EPA preemptively stops projects before they enter the permitting process, any large project could be at risk. Preemptive action by the EPA could become a new tool opponents use to stop projects, or at a minimum, introduce significant uncertainty and delay, chilling Alaska's business climate. 

 Comment Deadline was October 17, 2017