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EPA to protect Bristol Bay salmon fishery in move that could lead to Pebble mine veto

Lisa Demer
George and JoAnn Nelson spoke during a meeting with EPA administrator Gina McCarthy in the Dillingham Middle School gym on Tuesday, August 27, 2013.
Bill Roth
Aerial view of a work camp in the area of the proposed Pebble Mine on Tuesday, August 27, 2013.
Bill Roth
Upper Talarik Creek flows into Lake Iliamna in the Bristol Bay watershed. Braided wetlands and tundra are typical of the watershed landscape.
EPA photo
Aerial view of Dilligham on Bristol Bay, where EPA administrator Gina McCarthy listened to people from around the region voice their opposition to the proposed Pebble mine during a meeting at the Dillingham Middle School gym on Tuesday, August 27, 2013.
Bill Roth
EPA administrator Gina McCarthy listened to people voice their concerns about the proposed Pebble Mine during a meeting in the Iliamna Lake Lodge on Tuesday, August 27, 2013.
Bill Roth

JUNEAU -- A federal agency announced Friday it was moving to protect the Bristol Bay watershed, home to the world's largest sockeye salmon runs, under an obscure element of the Clean Water Act. Its actions could lead to a virtually unprecedented administrative veto of the proposed Pebble mine even before developers formally submit plans.

While the Environmental Protection Agency said a number of steps must happen before it decides whether to block the mine, officials also stressed that the fishery is an "extraordinary resource" that needs special protection.

Half of the world's sockeye salmon are produced in the Bristol Bay watershed in runs that average 37.5 million fish a year.

Environmental, fishing and Alaska Native groups have pushed the EPA to block the mine. Pebble and Republican political leaders, including Gov. Sean Parnell, U.S. Sen. Lisa Murkowski and Rep. Don Young, have faulted even the whisper of a preemptive veto as extreme "federal overreach."

Pebble said Friday it is seeking an inspector general investigation of EPA's efforts on Pebble. Murkowski on Friday said the EPA action is "a terrible precedent." State Sen. Cathy Giessel called it "federal overreach on steroids."

But Native organizations, sport and commercial fishing groups, environmental groups, religious leaders and some Democratic lawmakers praised the agency for stepping in.

The governor's office said the issue may end up in court. EPA is cutting off the public process, Parnell's spokeswoman, Sharon Leighow, said in an email. EPA says this public process is just beginning.

"The State is prepared to pursue all legal options to ensure Alaska's rights are protected," Leighow wrote.

EPA said it is operating under the rarely used Section 404(c) of the Clean Water Act.

"This 404(c) process is not something, and I want to stress this, that the agency does very often but the Bristol Bay fishery is an extraordinary resource and it's worthy of out-of-the-ordinary agency actions to protect it," EPA Administrator Gina McCarthy told reporters on Friday.

She said Pebble was "a unique mine in a very unique place" and that the decision to move ahead did not change EPA's overall policies on mining or affect any other mine in Alaska.

Pebble would be the largest open-pit mine in North America. It would destroy a 7-square-mile section of a salmon-producing watershed that now is almost undisturbed, EPA said.

The deposit straddles the headwaters of two rivers that produce half of Bristol Bay's salmon, a fishing industry that EPA says was worth $480 million directly in 2009 and that employed more than 14,000 people.

President Obama strongly supports EPA's invention, White House press secretary Jay Carney said.

GOLD AND COPPER GALORE

Pebble Ltd. Partnership, the mine developer, says the region's mineral deposit is among the largest and richest in the world, with the potential to produce more than 80 billion pounds of copper and 107 million ounces of gold over three decades.

An economic study for Pebble found the mine would create more than 2,500 jobs directly during construction, with more 1,200 jobs on average during production. The direct benefit to the Alaska economy would top $200 million a year during construction and about $1 billion during initial production, according to the May 2013 report by IHS Global Insight. The project would generate as much as $180 million annually in state taxes and royalties during production.

Pebble developers, with support of Republican political leaders, say they should be able to submit their plans and seek permits before any decision is made. If the work cannot be done without destroying the salmon fishery, the mine won't happen, Pebble says.

"We understand the importance of salmon both culturally and commercially in the region," Pebble spokesman Mike Heatwole said Friday.

Tom Collier, the new chief executive of Pebble Partnership, said EPA is turning a science-based process for evaluating projects "on its head."

"The steps taken by the EPA to date have gone well outside of its normal practice, have been biased throughout, and have been unduly influenced by environmental advocacy organizations," Collier said in a written statement.

Northern Dynasty Minerals, now the sole owner of the Pebble project, and the state of Alaska in January each asked the EPA inspector general to investigate that process. The project is facing financial as well as regulatory troubles. Northern Dynasty is seeking a new financial partner after mining giant Anglo American pulled out last year.

EPA said its work was thorough and rooted in science.

Instead of the quick veto sought by Native groups, EPA three years ago undertook a study of potential impacts on salmon of a large, open-pit mine in the Bristol Bay region. Its final study came out in January after two drafts, 1.1 million public comments and two reviews by an independent panel of experts.

Pebble still will have a chance to make its case for the mine, EPA says.

Dennis McLerran, administrator of EPA's Seattle-based region 10, on Friday sent a letter to Pebble, the state Department of Natural Resources and the Army Corps of Engineers announcing that it was acting under the Clean Water Act to review "potential adverse environmental effects of discharges of dredged and fill material" associated with Pebble.

"This process provides multiple opportunities to engage with the public and involved parties, including native communities in the area, fishermen, mining interests, landowners and our state and federal partners," his letter said.

No other mining or non-mining projects are targeted, McLerran stressed in the letter.

"It does not reflect a change in the way that the Agency will review and assess other mining projects in Alaska or elsewhere," he wrote.

The letter triggers a process that stops the Corps of Engineers from issuing a dredge-and-fill permit for Pebble while the EPA review is under way. McLerran said in an interview that's a temporary block on the mine but doesn't prevent Pebble from submitting a permit application. The permit process would take far longer than the newly initiated review anyway, he said.

HOT DEBATE

Debate over Pebble has raged for years and it promises to be an issue in Alaska's U.S. Senate race this year. Republican candidates Dan Sullivan, Mead Treadwell and Joe Miller have all criticized EPA on Pebble.

The incumbent Democrat, Sen. Mark Begich, calls Pebble the wrong mine in the wrong place but isn't pushing EPA to act. On Friday he said he, too, was concerned about "federal overreach from an administration that has already demonstrated it does not understand Alaska's unique needs."

Murkowski said EPA was moving toward "a premature veto."

"If EPA's action today in effect prejudges this project, the process EPA has outlined could establish a terrible precedent that only further detracts from investors' willingness to bring capital and jobs to Alaska," Murkowski said in a written statement.

Young, the congressman, said EPA's involvement was unwarranted at this stage.

"This expansive, jurisdictional power grab proposed by the EPA severely jeopardizes not only Alaska's sovereignty but the rights of states and all private property owners nationwide," Young said in a statement.

Tribes and other Alaska Native groups in 2010 petitioned EPA to block the mine even before it applied for its main federal permit through the Clean Water Act.

Jason Metrokin, president of the Bristol Bay Native Corp., said Friday that EPA was taking a thoughtful approach to protect the region's vital salmon.

"BBNC continues to support responsible developments in our region including mining. But the science has shown that the proposed Pebble mine presents unacceptable risks to the Bristol Bay salmon fishery," Metrokin said.

The United Tribes of Bristol Bay said the EPA was simply fulfilling its trust responsibilities to Native people and subsistence.

The region is home to one of the last salmon-based Native cultures in the world, McLerran said.

Trout Unlimited, a sport fishing group, said EPA's actions are important.

"If the EPA follows the science and follows through on this, it will rank as one of the most significant conservation achievements of the past 50 years," Trout Unlimited president Chris Wood said in a statement.

Native and fishing groups turned to the EPA because the state wasn't protecting their interests, said Tim Bristol of Trout Unlimited.

U.S. Sen. Maria Cantwell, a Democrat from Washington state who represents Seattle-based fishing interests, said "gold might be a valuable commodity but it's not more important than Pacific Northwest salmon." She planned to meet with fishermen Friday afternoon.

Two religious leaders, the Rev. David Mahaffey of the Orthodox Church in Alaska and the Rev. Shelley Wickstrom of the Alaska Synod of the Evangelical Lutheran Church, said the EPA announcement came two days after they met with the agency to urge protection of Bristol Bay. They too praised the agency.

Wickstrom called the region "a vibrant part of God's creation."

EPA ACTIONS

The EPA has initiated a review process under the Clean Water Act 29 times and issued restrictions 13 times, McCarthy said.

The regulation governing that section of law says EPA can prohibit filling an area if "the discharge of dredged or fill material is having or will have an 'unacceptable adverse effect' on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas."

Only once did EPA block a project that had yet to seek its dredge-and-fill permit and in that case, owners of two adjoining properties were seeking permits for the same type of wetlands work. The Florida landowners were stopped from using bulldozers to prepare wetlands for agriculture in that case, in the late 1980s.

Asked whether preemptive action in the Pebble case would be unprecedented, McLerran said, "We've got an unprecedented amount of information."

The Corps, Alaska state government and Pebble have 15 days to respond to the EPA letter, though they will likely seek an extension, he said.

The next step would be publication in the federal register of EPA's proposed action, which could be blocking the mine. That opens up a new round of public comment. EPA then would turn back to the Corps, the state and Pebble before making a final decision. The process could take a year, McLerran said.

Alaska voters will have a chance to weigh in on Pebble in the August primary election. A voter-backed initiative to give the Legislature say over a big mine in the Bristol Bay area has been certified for the ballot.

Reach Lisa Demer at ldemer@adn.com or 952-3965. Sean Cockerham from the Daily News Washington bureau contributed to this story.


By LISA DEMER
ldemer@adn.com
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