Resource Development Council

Parnell urges EPA to not invoke Section 404(c) rule

Governor Sean Parnell has sent Environmental Protection Agency (EPA) Administrator Lisa Jackson a letter requesting she decline to invoke Section 404(c) of the Clean Water Act, an action several tribes have asked her to take to prohibit or restrict discharges of dredged or fill materials, including mine tailings, within watersheds that would include the Pebble prospect in Southwest Alaska.

“Governor Parnell should be applauded for his letter as the impact of such action by EPA could be devastating to future development in the entire Bristol Bay region,” said RDC Executive Director Jason Brune. “If successful, this tactic could begin to be employed statewide by opponents of projects who don’t support the opportunity to go through a fair public process.”

Parnell assured Jackson he supports protecting the Bristol Bay watershed, and that he would do everything in his power to see that any development fully protects the resource values of the area.

“While I understand and share the petitioners’ desire to protect the resources in Bristol Bay, I disagree that invoking the 404(c) process at this time would contribute to that goal,” Parnell said. “At best, it would waste agency and public time and resources. At worst, it would work against our mutual aims.”

The governor said a premature 404(c) determination effectively prohibiting mining in the area would impinge on state land use planning authority. He explained that much of the land in the region belongs to the state. “We have completed several iterations of land planning for these lands, including exhaustive public outreach and deliberations to find a balance between competing interests and potential land uses. While we recognize that initiating the 404(c) process does not necessarily lead to a particular outcome, even the possibility that the process would conclude with a prohibition against mining over vast expanses of state lands causes great concern.”

Parnell said federal preemption of traditional state land use authority is an alarming prospect and would undo years of planning efforts, and the effects would not stop there. He explained there has been tremendous investment in the area based on the potential for mineral development. “We cannot fathom the liability and legal challenges that could accompany an unprecedented, after-the-fact determination by the federal government that mineral development from these state lands is no longer viable.”

The governor pointed out that Section 404(c) offers no protections beyond those included in the Section 404(b)(1) permitting process. The regulations that implement the two parts of the Clean Water Act include virtually the same prohibitions and call for virtually the same analyses and findings. “The difference is that you’re being asked to invoke Section 404(c) now ahead of any environmental planning and permitting processes, whereas the Section 404(b)(1) process would come later as part of the permit process for Pebble or another mine,” Parnell wrote Jackson.

“The record is currently insufficient to support the findings demanded by the 404(c) process, and could not begin to approach the record that will exist upon completion of the NEPA and permit processes that would be required for a new mine development,” Parnell said. “The environmental planning and permitting process for the Pebble Mine alone will necessarily produce volumes of studies and information that would allow for fully informed decisions about potential impacts from mining in the area.”

Parnell also noted not enough is known about mine plans in the area to gauge impacts as required by the 404(c) process. State and federal agencies have yet to receive designs or permit applications for the Pebble project, or any other major mine in the Bristol Bay area. “Without a specific proposal, EPA cannot evaluate the potential impacts or risks from the project,” Parnell said. “We do not know where facilities would be located, which wetlands might be impacted, or what the characteristics of the dredged or fill materials would be.”

Invoking the 404(c) process would also short change public participation, Parnell warned. He said the public notice and opportunity for comment under the 404(c) process could not rival the outreach, education, consultation, and other public involvement that would occur should the Pebble Mine or another mine advance to the NEPA and permitting phase.

Parnell warned that a premature 404(c) determination would effectively prohibit mining in the area and would disproportionately impact rural residents and Alaska Natives. He explained that approximately 70 percent of area residents are Alaska Native and 17 percent fall below the poverty line. The area has seen an 18 percent population decline in the last ten years. “Knowing of your keen interest in the effects of EPA decisions on disadvantaged populations, we hope you would take into account that a 404(c) decision to preclude mining in this economically-depressed region would abruptly and conclusively deny area residents any opportunity to avail themselves of the benefits they might seek from responsible mining,” the governor said.

Parnell concluded his correspondence to Jackson by noting the intended purpose and true utility of the 404(c) process is in addressing actual or imminent adverse effects where the NEPA and permit processes failed or where there is reason to believe that they will fail. He said there is no purpose or advantage to initiating the process now.

“I firmly believe initiating a 404(c) process would be ill-advised and potentially contrary to our shared goal of protecting area resources,” Parnell said.

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