Resource Development Council

RDC Comment Letter:
EPA's Proposed Determination on Pebble Deposit Area

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September 16, 2014

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

Re: Docket #EPA-R10-OW-2014-0505

To Whom It May Concern:

The Resource Development Council for Alaska, Inc. (RDC) is writing to comment on the U.S. Environmental Protection Agency’s (EPA) Proposed Determination of the U.S EPA Region 10 Pursuant to Section 404(c) of the Clean Water Act (CWA).

RDC is an Alaskan business association comprised of individuals and companies from Alaska’s oil and gas, mining, forest products, tourism and fisheries industries. RDC’s membership includes Alaska Native Corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

RDC requests the EPA withdraw its Proposed Determination, and discard the flawed Bristol Bay Assessment. EPAs efforts in this case are establishing a dangerous precedent for future projects in Alaska and around the United States. These efforts are denying Alaskans fair and due process, as well as the ability to develop a healthy economy. RDC is concerned these actions will be used in other areas around Alaska, as well as across the nation.

The EPA’s proposed determination is a major federal action and is being pursued absent thorough review under the National Environmental Protection Act (NEPA) process. The Council on Environmental Quality states that it is important to note that human beings are part of the environment (indeed, that is why Congress used the phrase “human environment” in NEPA), so when an Environmental Impact Statement (EIS) is prepared and economic or social and natural or physical environmental effects are interrelated, the EIS should discuss all of these effects. Not only has the EPA failed to fairly evaluate the economic and social impact of its proposed determination, it has failed to conduct the “hard look” of a wide range of alternatives as required by NEPA.

Further, RDC believes the Bristol Bay Assessment is a flawed document, based on a desired outcome: to preemptively veto the Pebble Partnership’s opportunity to propose a project. The EPA has used the process at the wrong time, and in a flawed way: determining a solution to a question instead of asking a question to find a solution.

The Proposed Determination should not be recommended or finalized

The EPA is acting outside of its authority under the CWA in its attempts to preemptively block resource development in Alaska. RDC filed an amicus brief to the pending litigation challenging the EPA’s legal authority to pursue this preemptive action. EPA’s actions deny project proponents fair and due process, and set a dangerous precedent for development projects in Alaska and across the nation.

RDC urges the EPA to stop its work, and wait to review the project at the proper time, when a detailed mine plan has been proposed, permits applied for, and the federal NEPA review process has been undertaken. Moreover, the Proposed Determination is preemptive, unprecedented and based on a flawed report. RDC is concerned the EPA will use this process to preemptively block future development projects in Alaska.

The Proposed Determination and potential actions undermine the stability of existing regulatory processes and set a dangerous precedent for future projects. If the EPA preemptively stops projects before they enter the permitting process, all future community and resource projects will 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 investment climate. In spite of the EPA’s assurances that this preemptive approach is unique to Bristol Bay, to the broader regulated community this unprecedented process adds significant uncertainty and is creating yet another unnecessary barrier to capital investment in Alaska, which is critical to the economic well-being of its residents.

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 represent yet another federal 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.

Information on potential impacts on the North Fork Koktuli River, South Fork Koktuli River and Upper Talarik Creek watersheds, and downstream reaches of the Nushagak and Kvichak Rivers

The EPA requested more information on the rivers and creeks in the Pebble deposit area. To continue to study the area streams and rivers during the permitting process is the responsible way to attain more information.

Additionally, The EPA’s stream mile “impacts” must be put in to context with a detailed explanation. 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. The EPA’s actions in this case are completely arbitrary as the flawed Bristol Bay Assessment presents no scientific evidence of specific harm to fish from a mine at the Pebble deposit. The EPA should only rely on the best available science, and should not base its decisions on arbitrary figures.

Potential mitigation actions that could compensate for mining the Pebble deposit

RDC urges the EPA to allow the project to go through the regulatory and review process, as this will not impact other resources or the environment. However, not allowing this due process is hurting Alaskans and the nation. Mitigation measures cannot be determined without a detailed mine plan and the thoroughness of the permitting process. The EPA should only rely on thorough and best-available science to make decisions on projects.

The EPA's failure to acknowledge and accept proven mitigation strategies in Alaska undermines the cornerstone of responsible development. Mitigation is essential to all industries and the progress of how it is implemented is important and should not be ignored. The EPA’s conclusion that the productive capacity of the fish habitats in the subject watersheds cannot be materially improved upon is arbitrary and not based on any meaningful, detailed analysis of specific mitigation strategies, strategies that would be proposed and subject to robust scrutiny during the permitting process and associated NEPA review.

Discharge of dredged or fill material

The Proposed Determination bans fill and dredging activities based on a hypothetical plan. RDC contends the decision of whether or not discharge of dredged or fill material should be prohibited or limited should be part of the permitting process. RDC further contends the appropriate agency to make a permitting decision about dredge and fill material is the U.S. Army Corps of Engineers under the authority established by the CWA. The EPA’s role in project review under the CWA is only via the permitting context.

EPA’s actions unwarranted and under investigation

RDC reiterates the actions of the EPA are unwarranted at this time. Further, the agency has continued this action when litigation on their underlying authority to do so is pending in federal court in Alaska, and when its own Inspector General is currently in the process of reviewing the propriety of EPA’s actions. The people of Alaska deserve to know the outcome of the investigation before any further extolling efforts to preemptively veto a project in Alaska are continued. EPA has repeatedly noted the transparency of its Bristol Bay Assessment activities to date. What could be more transparent than allowing these two processes to conclude before taking a precedent-setting action that will undermine faith in the U.S. permitting system – putting future job creating investment at risk?

Potential impacts to Alaska’s economy

Article VII of Alaska’s constitution mandates the State develop its natural resources for the benefit of all Alaskans, and it is the State’s responsibility to objectively evaluate opportunities to balance competing interests in the best interests of its citizens. Alaska cannot do that if projects continue to be halted by overreaching outside interests.

It is estimated that in 2013, the mining industry in Alaska provided 9,100 direct and indirect jobs, with a payroll of $630 million. Most of these jobs, with an average wage of $100,000, were year round in over 120 Alaskan communities. Many of these communities are rural and have few other job opportunities available. The EPA’s own federal register notice demonstrates a lack of agency objectivity by extolling the value and virtues of what is admittedly a remarkable, renewable fisheries resource in the Bristol Bay watersheds, while failing to fully acknowledge the value and potential economic benefits of the world class mineral resources including Pebble. It is in the best interest of Alaskans to achieve an “all of the above” economy that benefits from its renewable and nonrenewable resources. This can only be realized by fair, scientific, and objective vetting of specific development proposals.

The Pebble Partnership has estimated the pre-mining exploration and permitting phase of the Pebble project can provide hundreds of well-paying jobs. Moreover, the Pebble Partnership has estimated the project itself, once permitted, could provide thousands of well-paying jobs, as well as millions of dollars of local and state revenue. A project of this magnitude truly deserves to be fully vetted by existing processes.


RDC again urges the EPA to halt this flawed process, allow project proponents to submit a detailed mine plan, file for permits, and initiate the thorough, well-vetted, existing permitting and review process including the objective NEPA process, as well as State regulatory processes. NEPA requires the permitting agencies to take a “hard look” and to consider social and economic impacts, as well as environmental impacts.

A preemptive decision, prior to permit or project application and completion of the NEPA process, is unacceptable, whether it be approval or denial of any project in any industry.

Thank you for the opportunity to comment.

Resource Development Council for Alaska, Inc.