The Pendulum Swings for Bristol Bay

Bristol Bay sockeye salmon, via Earthjustice and courtesy Of Fish Eye Guy Photography

Top photo: Bristol Bay sockeye salmon, via Earthjustice and courtesy Of Fish Eye Guy Photography

The fight to protect Bristol Bay’s still near-pristine ecosystem, which includes the world’s largest run of wild salmon, untainted by hatchery fish—or, if you’re on the other side of the issue, the fight to develop the Pebble Mine and its supporting infrastructure, in order to access a vast reserve of copper ore and other valuable metals—is an epic, seemingly everlasting story, where each side has taken its turn facing apparent defeat, and then found a way to keep fighting on.

It is a story of clashing values and changing political fortunes, of alleged back room deals, of people tied close to the land, with limited financial resources, trying to save a river, ancient traditions, and a way of life, and of foreign corporations who seek to create profit, without any apparent concern for what they might destroy.

Right now, events seem to be coming full circle, with the balance again seeming to favor Bristol Bay and its salmon, although there is no telling when that may change, as it has changed so many times before.

On September 9 of this year, the Environmental Protection Agency issued a press release announcing that it was “seeking to reinitiate the process of making a Clean Water Act (CWA) Section 404(c) determination to protect certain waters in Bristol Bay, Alaska. If such a determination is finalized, it would protect waters over the long term that are essential to commercial, subsistence, and recreational fisheries, and other activities that support Alaska Natives and communities in the state.”

In its press release, the agency noted that

Bristol Bay supports commercial, subsistence, and recreational fisheries that are worth hundreds of millions of dollars each year and create thousands of jobs. Bristol Bay fishery resources have supported a subsistence-based way of life for Alaska Natives for over 4,000 years.

The Bristol Bay watershed is an area of exceptional ecological value with salmon fisheries unrivaled anywhere in North America. The region’s streams, wetlands, lakes and ponds provides essential habitat that support all five species of Pacific salmon found in North America: coho, Chinook, sockeye, chum, and pink. The salmon populations are critical to the health of the entire ecosystem, which is home to more than 20 fish species, 190 bird species, and more than 40 terrestrial mammal species, including bears, moose, and caribou.

The release also explains,

The Clean Water Act generally requires a Section 404 permit from the U.S. Army Corps of Engineers to authorize a discharge of dredged or fill material into certain streams, wetlands, lakes and ponds. Section 404 directs EPA to develop the environmental criteria used to make permit decisions.

The U.S. Army Corps of Engineers authorizes thousands of Section 404 permits every year, and EPA works with the Corps and developers to resolve environmental concerns so projects can move forward. However, the Clean Water Act, in Section 404(c), also authorizes EPA to prohibit or restrict fill activities if EPA determines a discharge would have an unacceptable adverse effect on certain resources.

EPA has used its Section 404(c) authority sparingly, issuing final determinations only 13 times in the CWA’s 50-year history. The agency’s use of the authority has typically involved major projects with significant impacts on some of America’s most ecologically valuable waters.

A Section 404(c) determination, if made, would effectively prevent development of the Pebble Mine, and protect the integrity of the Bristol Bay ecosystem. The press release makes it sound very much like the EPA was planning to issue just such a determination.

And maybe it will.

But don’t lose track of the statement that the agency intended to “reinstate the process” of making a Section 404(c) determination. Understand that we’ve been down this road before.

In 2014, the EPA conducted an assessment of the Bristol Bay watershed, which considered the possible impacts of the Pebble Mine. Such assessment determined that the mine construction would have a negative impact on salmon and other fish along miles of river, even if things went well, and that a worst-case accident would impact far more of the watershed, with negative effects potentially lasting for decades.

In the same year, the EPA requested

public comment on a proposed determination to restrict the use of certain waters in the Bristol Bay watershed for disposal of dredged or fill material associated with mining the Pebble deposit, a large ore body in southwest Alaska. EPA Region 10 is taking this step because of the high ecological and economic value of the Bristol Bay watershed and the assessed unacceptable environmental affects that would result from such mining. This proposed determination relies on clear EPA authorities under the Clean Water Act (CWA), and is based on peer-reviewed scientific and technical information…

The EPA received over 675,000 comments on the proposed determination, most of them favoring the EPA’s use of its Section 404(c) authority. The Pebble Limited Partnership, which was seeking to develop the Pebble Mine, sued the EPA in an effort to short-circuit such Section 404(c) determination. The EPA was determined to defend its decision in court.

But in January 2017, a new president entered the White House, after running on a party platform that envisioned a “government [which] valued the role of extractive industries, and rewarded their enterprise by minimizing its interference with their work.”

It wasn’t long before Scott Pruitt, who was newly appointed to head the EPA, met with the Chief Executive Officer of the Pebble Limited Partnership. After the meeting, which reportedly lasted for less than an hour, the EPA announced, on May 12, 2017, that it had

entered into a settlement agreement with the Pebble Limited Partnership to resolve litigation from 2014 related to EPA’s prior work in the Bristol Bay watershed in Alaska. This settlement provides the Pebble Limited Partnership (Pebble) the opportunity to apply for a Clean Water Act (CWA) permit from the U.S. Army Corps of Engineers before EPA may move forward with its CWA process to specify limits on the disposal of certain material in connection with the potential “Pebble Mine.”

After two years of controversy and a few starts and stops, the EPA, on August 30, 2019, announced its intention to withdraw its proposed Section 404(c) determination. Conservation interests, fishermen, and fish were on the wrong side of the EPA decision, and it looked as if Pebble Limited Partnership was in the ascendancy.

But litigation can be brought by those on both sides of an issue; Trout Unlimited, a long-time advocate for trout and salmon conservation, contested the EPA’s withdrawal action in court.

In the meantime, the Corps of Engineers began to move forward with an environmental impact statement that had to be completed before a Section 404 permit could be issued. When the final EIS was issued, it found that the Pebble Mine would eliminate 99 river miles of fish habitat near the mine site, but would pose little risk to the greater area around Bristol Bay.

The Pebble Limited Partnership was close to declaring victory.

But Victory is a fickle mistress. It turned out that some important members of the President’s party like to fish for salmon and didn’t like the Pebble Mine. The list included the president’s son, and a prime-time news host friendly to the president’s administration. The Pebble Partnership CEO, Tom Collier, felt the shift in the wind, and began to complain about “a group of elitist sportsmen in America that want to keep Bristol Bay as their personal playground.”

Suddenly, a Pebble Mine victory was not assured. The same president who liked to keep extractive industries happy by slashing environmental regulations might well seek to please party stalwarts by blocking the mine.

And that’s just what happened. Despite its conclusions in the Final Environmental Impact Statement, the Corps of Engineers, on August 24, 2020, decided that the Pebble Mine

could have substantial environmental impacts within the unique Bristol Bay watershed and lacks adequate compensatory mitigation.

Given these concerns, the U.S. Army Corps of Engineers finds under Section 404 of the Clean Water Act that the project, as proposed, would likely result in significant degradation of the environment and would likely result in significant adverse effects on the aquatic system or human environment…

Therefore, the Corps finds that the project, as currently proposed, cannot be permitted under section 404 of the Clean Water Act.

What had looked like a clear Pebble Mine win just a few months before began looking very much like a Pebble Mine loss.

Still, the fight isn’t over.

Last January, both the Pebble Partnership and the State of Alaska appealed the Corps’ decision not to issue a Section 404 permit. Such appeal remains pending, although both the complexity of the issues involved and the recent replacement of the officer presiding over the appeal has delayed the process, which probably will take another year to resolve.

And, last January, another new President took office, who was far more inclined to protect clear-flowing streams and the fisheries that they support.

Thus, after an appellate court ruled in Trout Unlimited’s favor last June, the EPA announced that it was returning to its initial course, and would seek to “reinitiate” the Section 404(c) determination.

So right now, the Pebble Partnership is close to a loss. But it would be a mistake to count them out too soon.

The appeal of the Corps of Engineers decision to deny a Section 404 permit is still ongoing, and if that decision goes against the Pebble Partnership, nothing will prevent them from challenging the decision in court. And nothing will prevent them from challenging an EPA Section 404(c) determination, if and when such determination is made.

Many judges who have recently been appointed to the federal courts, including to the Supreme Court, tend to be hostile toward the regulatory process, and friendly to big business. Few if any are predisposed to favor pro-conservation litigants.

So Pebble could still lose every administrative decision, and still come out a winner in the courts.

Thus, Trout Unlimited recognizes that “Congressional legislation is needed to assure that Pebble—or any other mining company—does not return in the future with plans to operate in the Bristol Bay region.”

Whether there is broad enough support in Congress for such legislation is an open question. Federal legislators receive a lot of corporate donations, so plenty of them favor industry over the environment, too.

The unpleasant fact is that, in the end, the fate of Bristol Bay, and of the nation’s other remaining fisheries, in freshwater and in the salt, lie in the political sphere. Science can only take them so far before it is overthrown by a conservation-averse bureaucrat or a piece of industry-friendly legislation.

The political pendulum has now swung in favor of Bristol Bay, and it will hopefully stay where it is long enough to give that unique watershed real and lasting protection.

But the long and twisting fight to protect Bristol Bay should remind every angler, and every person who cares about the future of native fisheries and the waters that support them, that when they vote, they ought to support the candidates and platforms that support the natural resources that, in the end, support us all.

About Charles Witek

Charles Witek is an attorney, salt water angler and blogger. Read his work at One Angler’s Voyage.

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