Pebble releases appeal to Corps permit denial

Pebble Limited Partnership leaders argue Army Corps of Engineers Alaska District officials ignored their own findings and set arbitrary wetlands protection requirements when they rejected the company’s hotly contested mine plan, according to Pebble’s appeal documents published Jan 27.

Pebble’s parent company, Vancouver-based Northern Dynasty, released the 91-page appeal days after the State of Alaska filed its appeal, in which officials in Gov. Mike Dunleavy’s administration argued the Corps’ decision prevents the state from fulfilling its obligation to develop its mineral resources. Pebble previously announced it had filed its appeal with Army Corps of Engineers Pacific Division leadership but had not made the details of its arguments public.

The company insists the Nov. 20, 2020, record of decision, or ROD, signed by Corps Alaska District Commander Damon A. Delarosa denying Pebble the wetlands fill permit for its project directly contradicts what the agency’s regulatory officials wrote in the final Pebble environmental impact statement, or EIS, published last July.

The Army Corps of Engineers administers Clean Water Act Section 404 wetlands permits nationwide but the EPA has final say over whether a wetlands fill permit is issued.

The appeal states that the ROD “speculates” that the project — primarily the mine site in the Koktuli River watershed, which would permanently lose 22 miles of stream habitat — would likely degrade stream productivity.

It also cites excerpts from the final EIS that indicate the ecosystem could withstand the development.

“This loss of habitat is not expected to have a measurable impact on fish populations downstream of the mine site because these narrow, steep, higher-gradient streams have lower habitat values and low fish densities compared to downstream reaches,” the final EIS states, according to the appeal.

Pebble also highlighted references in the final EIS to the projects impacts on commercial fisheries in which Alaska District officials wrote that the mine and its extensive network of support infrastructure “would not be expected to have measurable effects on the number of adult salmon returning to the Nushagak and Kvichak district(s),” the two major watersheds that the project straddles.

The final Pebble EIS largely maintained the conclusions reached in the draft version published in early 2019. However, officials from several state and federal resource agencies issued comments on the draft they believed were largely critical of the review for significant gaps in background data and what they viewed as overly broad and simplified conclusions made by Corps officials.

According to Pebble, the denial decision was also based on an unprecedented standard that the mine would have a “more than trivial” impact on the Koktuli River drainage, which Corps officials relayed to the company in June, several months before the ROD was issued.

Alaska District regulators determined the project would have some impact on 29 percent of the wetlands in the Koktuli watershed, the appeal states, adding that they concluded the project would cause “significant degradation” — a key finding in environmental reviews — based on a “preponderance” of significant impact findings for various factors.

“The District recognized that its ‘significant degradation’ determination was unprecedented and acknowledged that it was not aware of any other similar findings for large projects in Alaska,” the appeal states.

Pebble additionally alleges that the requirement for the company to mitigate its wetlands damage via actions within the Koktuli drainage also flies in the face of prior Corps precedent in Alaska.

The appeal notes that several large North Slope oil and gas projects were approved with mitigation measures, such as improving local wastewater facilities, that Pebble initially proposed and Alaska District officials approved the similarly massive Donlin Gold mine project in the Kuskokwim region with a mitigation plan that included preserving large tracts wetlands outside the immediate watershed because of a lack of available options near the mine site.

While Army Corps Pacific Division Commander Col. Kirk E. Gibbs will have the final say on the merits of the Pebble ROD appeals, some prominent opponents of the project claim the appeal submitted Jan. 22 by Gov. Mike Dunleavy’s administration is simply a political ploy because the state is not eligible to challenge the ROD.

Agency regulations limit administrative appeals to “affected parties,” which includes permit applicants and landowners — Pebble is on state land — who also have “received an approved (jurisdictional determination), permit denial, or has declined a proffered individual permit,” Corps regulations state.

While the state is an impacted landowner, the permit denial was specific to Pebble Limited Partnership’s proposed project.

“The state’s efforts to appeal the Corps of Engineer’s Pebble permit lacks legal merit, runs against the best interests of Alaskans, and is an unnecessary distraction at a time when the State of Alaska has far more pressing demands on its budget and legal resources,” said Dan Cheyette, lands and resources vice president for Bristol Bay Native Corp., which has helped lead in-state opposition to the mine project, in a statement for the Journal.

Pacific Division spokesman Luciano Vera wrote via email that division officials were reviewing the state’s appeal and no determinations have yet been made.

A spokeswoman for the Department of Law referred questions about the state’s standing to the arguments made in the appeal document.

The appeal, signed by then-Attorney General Ed Sniffen, contends that the state “is an ‘affected party’ given its substantial and identifiable legal interests in the property in question and in the precedent the permit denial sets for all future projects in Alaska requiring individual (Clean Water Act) Section 404 permits.”

Corps officials typically have a goal of issuing appeal decisions within 90 days but there is no deadline by which a decision must be made.

Elwood Brehmer can be reached at [email protected].

02/03/2021 - 9:35am