State to appeal Corps’ denial of Pebble permit

The Pebble Partnership will have the State of Alaska on its side when the company appeals the federal decision to deny the company approval to construct its mine later this month.

Gov. Mike Dunleavy announced via a Jan. 8 statement from his office that his administration would appeal the November U.S. Army Corps of Engineers record of decision, or ROD, denying Pebble the ability to secure a key Clean Water Act wetlands fill permit.

Dunleavy said in the statement that the decision signed by Army Corps of Engineers Alaska District Commander Damon Delarosa’s rejecting Pebble’s mine plan sets a “dangerous precedent” that will harm future development in the state.

“We have to prevent a federal agency, in this instance, the Alaska District of the Army Corps of Engineers, from using the regulatory process to effectively prevent the state from fulfilling a constitutional mandate to develop its natural resources,” the governor said.

The decision was based on flawed conclusions and “usurped the entire public interest review process,” the statement reads.

Corps Alaska District leaders found that Pebble’s plan for a large open-pit mine and extensive support infrastructure does not meet Clean Water Act criteria for minimizing development impacts and “is contrary to the public interest.”

The Pebble ROD followed draft and final versions of the project’s environmental impact statement — intended to inform the record of decision — that largely concluded the Bristol Bay region’s prolific salmon fishery wouldn’t be meaningfully impacted by the project.

Those findings were blasted by conservation, commercial fishing and Alaska Native groups opposed to Pebble for fears it would degrade water quality in productive salmon habitat and the mines waste would be a constant threat to the area’s salmon stocks, particularly in the Nushagak River.

Public surveys have consistently found a majority of Alaskans are against the Pebble mine plan.

Several state and federal agencies logged criticisms of the draft EIS for cursory analysis and conclusion drawn with incomplete data in official comments on the massive document.

Acting Attorney General Ed Sniffen said in the statement from the governor’s office that the Pebble ROD “ignored long-standing guidance that required it to tailor mitigation requirements to recognize Alaska’s unique position of holding more intact wetlands than any of the Lower 48 states combined.”

In the first indication that Pebble could have trouble obtaining a wetlands fill permit the Corps officials in late August imposed mitigation requirements mandating the company conduct direct, in-kind mitigation — restoration or preservation — in the Koktuli River drainage, a Nushagak tributary, where the mine would be located.

Pebble proposed preserving 112,000 acres of predominantly state land, including 31,000 acres of aquatic resources to offset impacts to 3,300 acres of wetlands and 185 miles of streams. The company did not propose any compensatory mitigation for its west Cook Inlet port site.

In June 2018 former Environmental Protection Agency Administrator Scott Pruitt and Assistant Army Secretary for Civil Works R.D. James signed a memorandum of agreement laying out Alaska-specific guidelines generally calling for less rigorous requirements for wetlands fill permits in the state.

The memo encouraged Alaska District officials to allow for compensatory mitigation over a larger watershed scale “given that compensation options are frequently limited at a smaller watershed scale,” its states.

“Given this flexibility, Alaskans should be assured that discharges of dredged or fill materials into waters of the United States will be evaluated in a reasonable manner, consistent with the agencies’ goal of fair, flexible, and effective protection of the nation’s wetlands resources,” the memo states.

Department of Law spokeswoman Maria Bahr wrote in response to questions about the specific flaws in the ROD that the department is preparing the appeal that will identify the state’s arguments and it will be filed by the Jan. 25 deadline.

The appeal would be adjudicated by the commander of the Army Corps Pacific Ocean Division headquartered in Honolulu, currently Col. Kirk E. Gibbs.

Dunleavy has insisted his administration is neutral in regards to the development of Pebble while many of the project’s opponents consider the appeal further proof the governor is doing what he can to spur its development.

Norm Van Vactor, CEO of the Bristol Bay Economic Development Corp., a group that works to support the region’s communities through its ownership of Bering Sea fishing quota, said he is disappointed but not surprised by the governor’s decision to appeal the Pebble denial. Dunleavy has not missed an opportunity to back the project, he said.

“There’s been evidence that literally some of the governor’s correspondence are cut and pasted documents that originated with the Pebble Partnership; it’s just blatant,” Van Vactor said in reference to a letter Dunleavy sent to Corps officials in 2019. “He might as well be their spokesman.”

He said regardless of the expected appeals he expects the combination of President-elect Joe Biden’s incoming federal administration and Sens. Dan Sullivan and Lisa Murkowski, who both took positions against Pebble late last summer should provide opportunities to protect the Pebble area, something Murkowski has already discussed.

Dunleavy spokeswoman Lauren Giliam wrote via email that the governor has always advocated for a “consistent, predictable and fair” permitting climate.

“Supporting the attributes of a robust regulatory regime is not the same as cheerleading for a particular project. The Pebble project’s proposal has, for the better part of 20 years, been snarled through ad hoc political decisions as opposed to objective regulatory determinations. The U.S. Army Corps of Engineers most recent decision, a literal 180-degree reversal in the span of a month, is a clear case-in-point,” Giliam wrote.

“Time and again, the governor has always deferred to the science of the project, and if it was found to be good for Alaska, he would welcome the opportunity.”

Pebble spokesman Mike Heatwole said company representatives briefed administration staff about their plans to appeal the project but they did not request the action from the state. The company still plans to file its own appeal, according to Heatwole.

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Elwood Brehmer can be reached at [email protected].

Updated: 
01/13/2021 - 1:44pm