The Environmental Protection Agency isn't waiting until permits are filed for the Pebble mine project before it undertakes a study on its potential impacts in the Bristol Bay watershed.
In response to petitions from Pebble opponents to preemptively shut the project down under its 404(c) authority through the Clean Water Act, the EPA announced Feb. 7 it will instead conduct a yearlong scientific assessment of the Bristol Bay and potential impacts from large-scale development.
The 404(c) provision is a rarely used veto authority held by the EPA to revoke permits issued by the U.S. Army Corps of Engineers. It has been used only 13 times since 1972, and has never been used before a permit application has been filed or approved.
A similar EPA assessment of surface coal mining in the central Appalachia region led the agency to issue new regulations for water permits in August 2010 and to use its 404(c) authority Jan. 13 to veto a permit issued to Spruce Mine No. 1 in West Virginia.
Although the EPA said the assessment isn't limited to hard-rock mining impacts, the area it will study is the Nushagak and Kvichak drainages downstream from the Pebble deposit.
The release also refers to the study area in the Bristol Bay watershed as "not protected" from development compared to other areas where "large development is restricted."
Pebble will need at least 67 major federal and state permits in addition to scores of others. No permit applications will likely be filed until 2012, and the process is expected to take a minimum of three to five years.
Once under way, the permit process will be governed by the National Environmental Policy Act, which requires exhaustive state, federal and independent review of both physical and socio-economic impacts.
"The Bristol Bay watershed is essential to the health, environment and economy of Alaska," said EPA Region 10 administrator Dennis McLerran. "Gathering data and getting public input now, before development occurs, just makes sense. Doing this we can be assured that our future decisions are grounded in the best science and information and in touch with the needs of these communities. We look forward to working with Alaskans to protect and preserve this valuable resource."
The Pebble Limited Partnership is a 50-50 joint venture between Northern Dynasty of Vancouver and Anglo American of London. The deposit is estimated to hold about $400 billion worth of copper, gold and molybdenum and faces widespread opposition because of its proximity to the pristine streams that feed the world's largest salmon run.
Pebble partnership CEO John Shively said he was glad the EPA did not start down the path of using its 404(c) authority, at least initially, but said more than Pebble could be affected.
"If this is designed to lead to some sort of recommendation that would limit development, there's potential impacts on state lands, Native lands and federal (Bureau of Land Management) lands," he said. "There may also be private lands affected."
The EPA emphasized in its news release that this is not a regulatory action, although the results will "inform any future guidelines or actions about how to protect the waters and promote sustainable development."
The EPA will spend a year collecting scientific information on the watershed, but will have to rely on the Pebble partnership's baseline environmental document. The document encompassing more than six years of intense research totaling more than $100 million is expected to be released sometime this year.
Shively said once it is released, the EPA, like everyone else, will have access to the 18,000-page document and tens of thousands of pages of appendices.
Shively said there has been "not really any" contact between the EPA and Pebble other than a meeting with administrator Lisa Jackson last summer and a Seattle meeting with McLerran in December.
Two rounds of public comment sessions will be part of the EPA assessment. Each round will have a session in Anchorage with the other in the watershed. When Jackson visited Alaska in July, she traveled to Dillingham.
Located on Bristol Bay, opposition to Pebble in Dillingham is strongest, and Shively said it would be "our preference" if one of the public comment sessions took place in or near Iliamna closer to the Pebble operation. The EPA Region 10 office said the locations for the watershed sessions has not been determined.
Alaska U.S. Rep. Don Young, who has introduced legislation to strip the EPA of its 404(c) authority, blasted the study in his usual blunt fashion.
"The EPA is blatantly circumventing the permitting process and the Corps of Engineers' authority," Young said in a statement. "What will they be reviewing in the absence of a permit application? The apparent free-for-all happening over at Federal Triangle is indicative of the romper-room style of governing that seems to define this Administration, with the EPA being the child that cuts the line and won't follow the rules."
In a statement, U.S. Sen. Lisa Murkowski welcomed the study and the decision to not use the 404(c) power.
"I am committed to letting the science decide whether mining is right for the Bristol Bay region, but any attempt to prejudge a project before the environmental work is finished would be a troubling signal, as well as a clear violation of the environmental review process," Murkowski said. "I remain staunchly committed to protecting the health of the Bristol Bay watershed, but fishing and subsistence alone are not enough to ensure the survival of our communities.
"I will not trade fish for minerals, but I believe that companies willing to invest in our region deserve to be given a fair shake to present their proposals."
In 2010, the state Legislature approved a $750,000 third-party study of potential impacts of mining on the Bristol Bay watershed. The Pebble partnership, Resource Development Council and Alaska Miners Association urged Gov. Sean Parnell to veto the study.
Responsibility for carrying out the study was delegated to the Legislative Council, a 14-member joint committee of House and Senate members. The council held two hearings on the matter before the November elections, but could not decide on appropriate questions for the study. Nor could the council agree on whether to put the study out for bid or award the contract to the National Academy of Sciences.
With a new Legislature seated, the council membership has changed and is now chaired by Sen. Linda Menard, R-Wasilla, who replaces House Speaker Mike Chenault, R-Kenai.
According to Menard's office, no hearings on the Pebble study are currently scheduled, though the issue is "on our radar."
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