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Read RDC's Request for Comment Deadline Extension

Comment deadline was September 19, 2014

Overview:
The Environmental Protection Agency (EPA) has released Proposed Determination of the U.S. EPA Region 10 Pursuant to Section 404(c) of the Clean Water Act on the Pebble Deposit Area. This proposed determination attempts 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 proposed determination describes the following far-reaching yet arbitrary limitations:

• Loss of streams: The loss of five or more miles of streams with documented salmon occurrence (coho, Chinook, sockeye, chum, pink); or the loss of 19 or more miles of streams where salmon are not documented, but that are tributaries of streams with documented salmon occurrence.
• Loss of wetlands, lakes, and ponds: The loss of 1,100 or more acres of wetlands, lakes, and ponds that connect with streams with documented salmon occurrence or tributaries of those streams.
• Streamflow alterations: Streamflow alterations greater than 20 percent of daily flow in nine or more linear miles of streams with documented salmon occurrence.

The EPA’s use of “any or all” of the above limitations indicates that any one of the limitations could halt a project, whether it be a community or industry project.

Note that much of Alaska is considered wetlands, and policy stating no more than 1,100 acres of wetlands disturbance will further hamper Alaska’s ability to responsibly develop its natural resources, as well as provide much needed community development and infrastructure. For example, the Ted Stevens International Airport in Anchorage is 4,800 acres, much of which is considered wetlands.

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. The public comment period will run through 8:00 p.m. September 19, 2014.

A copy of the proposed determination is available online at: http://www2.epa.gov/bristolbay

Action Requested:
Please urge the EPA to halt its preemptive actions thus far. Tell the EPA to stop undermining existing regulatory processes and avoid setting a dangerous precedent for development. Investment in Alaska should not be jeopardized by federal overreach.

Public meetings were held in August.

Submit comments online: Reference Docket ID No. EPA-R10-PW-2014-0505: http://www.regulations.gov

Send an email to: ow-docket@epa.gov, include Docket #EPA-R10-OW-2014-0505 in the subject line.

Mail to (include original and three copies):
Water Docket, Environmental Protection Agency
Mail Code 2822T
Attn.: Docket ID No. EPA-R10-OW-2014-0505
1200 Pennsylvania Ave., N.W.
Washington, DC 20460

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 ignores existing processes, undermining existing 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.
• 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.
• 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 mineral 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 proposed determination and potential actions would 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.
• The comment period should be extended to adequately allow for public review of the document. The 60-day comment period in place is insufficient and should be extended by at least 60-days to allow commenters ample time to provide feedback.

Comment deadline was September 19, 2014