Army Corps of Engineers denies Pebble permit

  • This June 25, 2019, photo shows people gathered outside U.S. Sen. Lisa Murkowski's office in Juneau to protest the proposed Pebble Mine. On Nov 25, the U.S. Army Corps of Engineers denied the key federal permit sought by the Pebble Partnership. (Photo/Becky Bohrer/AP)

In the end, Pebble Limited Partnership will not be getting a key permit for its mine from the Trump administration.

The Army Corps of Engineers Alaska District issued a record of decision Nov. 25 denying Pebble’s Clean Water Act wetlands fill permit application, which, barring an unlikely reversal on appeal, kills the current iteration of the Pebble mine plan. 

The company’s late 2017 application for the key development permit spurred the multi-year environmental impact statement, or EIS, review that has since been the focal point of the fight over the massive and contentious mine plan.

The Army Corps’ record of decision, or ROD, summarily states that the mine plan impacting more than 3,300 acres of wetlands and 185 miles of streams does not comply with Clean Water Act guidelines and “is contrary to the public interest.”

Corps of Engineers Alaska District Commander Col. Damon Delarosa wrote at the end of the 29-page decision document that the Pebble mine plan is being denied because the project would result in “significant degradation of the aquatic ecosystem.”

“I have concluded that the benefits of the proposed elimination and alteration of wetlands, streams and other waters within the (Army Corps) jurisdiction do not outweigh the detriments that would be caused by such eliminations and alterations, based upon the information contained in the FEIS, the extensive public comments received, and the analysis of the public interest review factors,” Delarosa wrote. “As those eliminations and alterations would be necessary to realize any benefits from the proposed project, I have found that the project is contrary to the public interest.”

Delarosa took over as commander of the Alaska District this past August.

Opponents of the mine naturally celebrated the Corps’ decision, generally stressing that the permit denial ultimately follows years of scientific conclusions about likely environmental impacts of the project and what a majority of Alaskans want in regards to Pebble.

Bristol Bay Native Corp. CEO Jason Metrokin called the decision “a triumph for the people of Bristol Bay” in a formal statement.

“While we are still reviewing the details of the decision, it is clear that Pebble is not in the best interests of Bristol Bay and those whose livelihoods depend on its incredible fishery,” Metrokin said.

“We thank the Corps for acknowledging this reality in its decision. BBNC looks forward to working with stakeholders, both in-region and across Alaska, our congressional delegation and the federal government to ensure that wild salmon continue to thrive in Bristol Bay waters, bringing with them the immense cultural, subsistence and economic benefits that we all have enjoyed for so long.”

Pebble’s opponents have routinely cited that the region’s large commercial sockeye fishery — currently one of the state’s few thriving commercial salmon fisheries —supports more than 14,000 jobs and generates more than $1.5 billion in economic activity.

Sens. Dan Sullivan and Lisa Murkowski, both of whom formally opposed the project in late August when the Corps issued strict mitigation requirements for Pebble, said Corps officials came to the right conclusion on Pebble, despite their general support for Alaska’s mining industry.

“This is the right decision, reached in the right way,” Murkowski said. “It should validate our trust and faith in the well-established permitting process used to advance resource development projects throughout Alaska. It will help ensure the continued protection of an irreplaceable resource — Bristol Bay’s world-class salmon fishery — and I hope it also marks the start of a more collaborative effort within the state to develop a sustainable vision for the region.”

Murkowski previously said her preference was that the Corps deny the permit rather than the Environmental Protection Agency issuing a subsequent permit “veto” because of concerns she has about an EPA development prohibition stymieing other resource projects in the state.

Murkowski has instead floated the concept of changing the status of the land Pebble wants to mine, which is state land designated for its mineral potential, but a spokeswoman for Murkowksi could not provide additional details on the senator’s ideas in time for this story.

Sullivan said he will continue to advocate for other resource development projects in the state because of the jobs and economic opportunities they can provide.

“However, given the nature of the Bristol Bay watershed and the fisheries and subsistence resources downstream, Pebble had to meet a high bar so that we do not trade one resource for another. As I have been saying since August, Pebble did not meet that bar and, accordingly, the Corps rightly denied the permit,” Sullivan said.

Rep. Don Young did not applaud or criticize the decision in a statement from his office, but said he is disappointed in the fact that the permitting process allows the federal government to effectively kill a project proposed on state land.

“Now there must be a consideration of how the federal government will compensate the state for the loss of economic potential (from the mine),” Young said.

Pebble CEO John Shively said company representatives are obviously dismayed with the decision, particularly since the final EIS published in July indicated the project could co-exist with the fishery.

“One of the real tragedies of this decision is the loss of economic opportunities for people living in the area. The EIS clearly describes those benefits, and now a politically driven decision has taken away the hope that many had for a better life.” Shively said in a statement. 

The company is now focused on the next steps for the project, including an appeal of the decision, according to Shively.

The company has 60 days to appeal the decision.

Pebble’s Vancouver-based parent company Northern Dynasty Minerals Ltd. issued a statement Wednesday that is sharper yet in its criticism of the Corps’ conclusions.

“Based on the positive findings of the final EIS, conclusions by the (Army Corps) that development of the Pebble project is ‘not in the public interest’ are wholly unsupported,” Northern Dynasty’s statement reads.

“For the United States to turn its back on an opportunity to develop these minerals here at home in a manner that U.S. regulators have agreed is environmentally safe and responsible, and to do so for purely political reasons, is not just short-sighted; it’s self-destructive,” Northern Dynasty CEO Ron Thiessen said.

Northern Dynasty stock traded at 80 cents per share on Nov. 24 prior to the permit denial and has since fallen to 34 cents per share during early trading Dec. 2.

The final Pebble EIS published in late July largely concluded that the large open-pit mine plan and its extensive support infrastructure would not materially impact salmon returns or the region’s water-plentiful ecosystem. 

The final EIS backed the conclusions of the draft document published in 2019. Both of the documents were widely dismissed by Pebble opponents for lacking in-depth science and being rushed to fit permitting within the timeframe of the Trump administration.

Army Corps Alaska District spokesman John Budnik wrote via email that the decision “is based on all the facts at-hand, which includes information provided by the permit applicant and the public, and is in compliance with existing laws and regulations.”

An appeal would be adjudicated by the commander of the Army Corps Pacific Ocean Division headquartered in Honolulu, according to Budnik. That position is currently held by Col. Kirk E. Gibbs.

Multiple conservation groups active in the fight against Pebble contend the proposed mine is the first large oil and gas or mining project in Alaska to be outright denied by the Corps. Budnik wrote that no major infrastructure projects have been denied a Clean Water Act permit by the agency since current Regulatory Chief Dave Hobbie took the position in 2015 but it’s unclear what happened before then.

Brian Litmans, legal director for the Anchorage-based nonprofit environmental law firm that has fought Pebble said in an interview that the group thought both versions of the Pebble EIS could’ve been more thorough but noted Corps officials could also consider other information such as public comments and the EPA’s 2014 Bristol Bay Watershed Assessment — which concluded most any large mine would have substantial negative impacts on the region’s ecosystem.

The watershed assessment was the basis for the EPA’s decision in 2014 to propose a “preemptive veto” of a large mine in the project area under authority granted it by Section 404(c) of the Clean Water Act. It was also the focal point of a subsequent lawsuit in federal court by Pebble against the agency, in which the company argued EPA staffers improperly coordinated with mine opponents and kept Pebble from contributing to the 1,000-plus page document. 

That lawsuit ended in a May 2017 settlement that prohibited the agency from revisiting a veto for four years or until the Army Corps finished an EIS for Pebble; however, it did not invalidate the watershed assessment, meaning the Corps could still use it in its evaluation of the potential impacts of the project.

“If anyone looked at this project, it’s impossible not to see significant degradation,” Litmans said.

He also noted that the ROD states Pebble’s plan to mitigate the wetlands damage the project would cause was found to be insufficient.

“Ultimately the science is clear on this one,” Litmans said.

Mitigation plan

The ROD states that Pebble “proposed to preserve a 112,445-acre area in the Koktuli River watershed, including 31,026 acres of aquatic resources” as the primary part of it's mitigatoin plan — actions to offset the damage the mine and associated infrastructure would have on wetlands, lakes and streams in the area.

Under requirements published by the Corps in an August letter to Pebble but made apparent to the company earlier based on state documents obtained through a public records request by SalmonState, an Alaska-based opponent of the project, Pebble needed to find ways to mitigate its environmental damage within the Koktuli drainage where the mine site would be located.

The stringent mitigation requirements laid out by the Corps are in sharp contrast to Pebble’s original mitigation plan as well as Alaska-specific guidelines issued by the Trump administration in 2018. Those joint Corps-EPA  guidelines encouraged regulators in the state to be flexible in approving mitigation measures for development projects because more than half of the state is considered wetlands — a fact development proponents often note.

According to the documents shared by SalmonState, Corps officials told Alaska Department of Natural Resources officials in an August meeting that “If the impacts will be mitigated through preservation the ratio would need to be 10:1 to 20:1,” which puts Pebble’s proposal at the low-end of what the agency wanted, and Corps officials believed the threshold could be met within the Koktuli drainage. 

Officials in Gov. Mike Dunleavy’s administration have regularly been accused of coordinating with Pebble to advance the mine despite the governor’s insistence his administration is neutral on the project.

DNR spokesman Dan Saddler wrote in response to early November questions from the Journal that state agency officials had “no expectation” as to how many acres of state land Pebble would propose preserving. DNR officials simply answered questions from Pebble about state laws and regulations applicable to the project.

The Koktuli watershed is almost exclusively state land and, with virtually no development beyond Pebble’s exploration work, holds little opportunity for wetlands restoration.

Saddler wrote in response to questions after the release of the ROD that Pebble’s plan to deal with federal mitigation requirements “is fully up to them, and does not define DNR’s expectations. We don’t deal with expectations, but with actual applications submitted to us for consideration under state law and regulation.”

Elwood Brehmer can be reached at [email protected].

Editor's note: This story has been updated with additional statements and information since the original story was posted on Nov. 25. A prior version of this story incorrectly stated the Army Corps had not published Pebble's mitigation plan. The agency inititally withheld it from the public when Pebble announced it had been submitted prior to the record of decision, but it was released shortly after the decision document was published Nov. 25.

12/02/2020 - 10:01am