The State of Alaska has charged that the Environmental Protection Agency’s (EPA) ongoing assessment of the Bristol Bay watershed is unlawful, preemptive, and premature.
Alaska Attorney General Michael Geraghty has asked the EPA to cease its work on the Bristol Bay Watershed Assessment and refrain from exercising its Section 404(c) authority under the Clean Water Act (CWA) until a permit application has been submitted for a large-scale mining project and other regulatory reviews are conducted.
In a letter to Region 10 Administrator Dennis McLerran, the attorney general raised substantial legal and process concerns the state has with the EPA’s work on the watershed assessment. The EPA initiated the assessment to inform its decision-making on a May 2010 petition it received asking the agency to invoke its Clean Water Act Section 404(c) authority. The petition asks the EPA to prohibit the disposal of fi ll into watersheds near Bristol Bay in which large mine development may occur in the future.
EPA’s exercise of its 404(c) authority has the potential to extinguish both the State’s mineral rights under the Statehood Compact and the mineral interests held by locators and lessees, Geraghty said. “The State will explore all available legal options in response to an exercise by EPA of its Section 404(c) authority, including remedy from the federal government for breach of the Statehood Act,” he warned. “EPA’s actions in using the watershed assessment to address the pending petition are unlawfully preemptive, premature, arbitrary, capricious, and vague.”
“Neither a petition process nor EPA’s process for developing a response are described in the CWA or its associated regulations,” Geraghty said. “EPA’s watershed assessment eff ort reaches well beyond any process or authority contemplated by the CWA.”
The assessment encompasses approximately 15 million acres of largely state-owned land, an area comparable in size to West Virginia. Much of that land, including the area of the proposed Pebble prospect, is designated for mining under the current state land management regime. Geraghty said the State has a vital interest in assuring that an action aff ecting natural resources and an area of this magnitude is consistent with law.
EPA has stated it intends to release a draft assessment in April 2012, and a final by fall 2012.
“This aggressive schedule further undercuts the reliability of this premature assessment, when compared to the intensive, multi-year NEPA review schedules that are required to address specifi cally-proposed projects,” Geraghty said. “EPA’s entire Section 404(c) process may be completed in as little as 111 days. This rushed process is woefully insufficient for a final decision that could significantly affect the economic future of such a large region.”
Premature assessment
Both the EPA’s watershed assessment and its potential exercise of its 404(c) veto authority over large projects in the absence of an actual Section 404 permit application from a project sponsor are “premature and unprecedented,” the attorney general wrote. He explained that a permit application for a potential project will trigger state and federal regulatory permitting authority reviews, including an impact analysis by the Army Corps of Engineers. The reviews will address the same issues EPA is attempting to consider in its “premature” assessment, Geraghty said.
“Until an application is filed describing a potential project, EPA will be speculating and prematurely determining unavoidable adverse impacts based on hypotheticals and inapplicable modeling, rather than waiting to evaluate real information on specific proposals, as Congress clearly intended,” Geraghty said.
Lack of EPA Authority
Although the purpose of the assessment is to provide a basis for a response to the Section 404(c) petition, EPA’s ongoing watershed assessment process is neither delineated in the Section 404 statute, nor is it set forth in EPA’s implementing regulations, the attorney general noted. EPA has stated that its assessment will review potential impacts of hypothetical mining alternatives and activities. However, “the unrestricted analysis of alternatives and activities appears to overstep the Section 404 authority Congress granted EPA,” Geraghty said. He pointed out that the Corps – the agency charged with issuing Section 404 permits – is not even listed among the federal agencies EPA has enlisted to develop the assessment.
Conflict with federal and state law
The attorney general said “the watershed assessment and a premature 404(c) determination by EPA conflict with other laws, including the Alaska Statehood Act, the CWA, and the National Environmental Policy Act (NEPA).” He said deciding the 404(c) petition without the benefit of a project application and substantial, scientifically vetted project-specific information would infringe on the State’s management and use of its lands.
“The State selected lands with natural resource potential to provide for the economic welfare of the residents of Alaska,” Geraghty said. “A premature decision could thwart those objectives, as established by both Congress in the Alaska Statehood Act and the Alaska Legislature in a myriad of State laws.”
The attorney general said that the formation of alternatives, the consideration of direct and cumulative impacts, and the formulation of mitigation measures are the responsibility of the Corps. “But the EPA’s watershed assessment would usurp the Corps’ role,” Geraghty warned.
Reliance on draft guidance
Geraghty wrote McLerran that the watershed assessment appears to inappropriately rely on draft guidance relating to the delineation of “waters of the U.S.” The draft guidance was released by the EPA and the Corps last spring, but has never been adopted. Many commenters, including the State and RDC, objected that the draft guidance illegally expands the scope of federal CWA jurisdiction. Geraghty said EPA should not rely on the draft guidance for its assessment.
Lack of scientific credibility
The State has previously advised the EPA that the agency may not currently have sufficient scientifically vetted water quality and hydrological data for the area to conduct the review EPA proposes for its watershed assessment. The State charged that EPA also proposes to use inappropriate modeling and documents that are internal or commissioned reports that have limited distribution and that have not been subject to external peer review. The State also charged that EPA has contracted with at least one consultant who has publically expressed actual bias against the Pebble project.
“These aspects of the assessment are troubling, will undermine the scientific credibility of the watershed assessment, and will yield unreliable conclusions,” the attorney general said.
Disregard of federal and state laws
Geraghty enclosed a list of laws and other documents that EPA should recognize in considering whether it is even appropriate for it to evaluate potential impacts of hypothetical development prior to submittal of a Section 404 permit application.
“This host of federal and state permitting authorities, including the Alaska Water Quality Standards and the Bristol Bay Area Plan, clearly apply to protect waters, watersheds, fish, wildlife, fisheries, subsistence, and public uses of the Bristol Bay watershed,” he said.
Disregard of potential benefits
EPA has indicated that the watershed assessment will not consider any potential benefits of large-scale development to water quality or to human health, safety, and welfare. As a result, the assessment will present a very limited and biased assessment of only negative impacts, and will fail to disclose the state and regional benefits that might result from mine development, Geraghty said.
In February, RDC Executive Director Rick Rogers had the opportunity to meet with EPA Region 10 Administrator Dennis McLerran, along with members of the RDC board. In that exchange, Rogers expressed many of the same concerns Geraghty raised in his letter.
“RDC advocates for predictable, timely and efficient state and federal permitting processes based on sound science and economic feasibility,” Rogers told McLerran. “RDC has grave concerns regarding the 404(c) process, including the precedent it may establish for other projects and the inappropriate role it puts the federal government in dictating the disposition and use of lands conveyed to the State and Alaska Native corporations under the terms of Statehood and the Alaska Native Claims Settlement Act.”
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