EPA Notice of Proposed Determination Pursuant to Section 404(c) of the Pebble Deposit Area, Southwest Alaska
June 16, 2022 • Testimony before the Environmental Protection Agency


My name is Leila Kimbrell and I am the executive director of the Resource Development Council for Alaska, Inc. (“RDC”). RDC is a non-profit Alaskan trade association with members in tourism, oil and gas, forestry, fishing, and mining, as well as the 12 regional Native corporations, organized labor, individuals, and others supporting the responsible development of Alaska’s natural resources.

I testify on behalf of RDC to oppose the EPA’s notice of Proposed Determination (PD) Pursuant to Section 404(c) CWA for the Pebble Deposit Area that would expand beyond the current proposed project to additional state owned lands in Southwest Alaska. This is consistent with RDC’s position on the EPA’s attempt in 2014 to preemptively veto the project.  

The new PD does not allow the project to be fully evaluated for several reasons. First, the comment period is insufficient to allow a thorough evaluation of the impacts and consequences of EPA’s proposed action. The timing of this action now is without explanation. This is a critical time of year for Alaskans when we are out fishing, subsisting and doing field work. At a minimum, and consistent with past agency actions, the comment period should be extended beyond the fishing and subsistence seasons to allow Alaskan stakeholders a reasonable time to review and meaningfully comment. There is no rationale that justifies rushing this process now.

Second, the selected area goes well beyond the project site and has long lasting impacts on state lands. This action is not just a veto of the proposed project, but a preemptive veto for any future development of approximately 309 square miles of state owned lands. The 404(c) process should not be used lightly and RDC disagrees that the expansive area of state-owned lands the EPA seeks to withdraw is adequately justified. The federal government should be able to use the 404(c) process as an end-run around state’s rights; and, in particular, the “no more” clause of ANILCA, which was the final federal lands compromise in Alaska.

Further, the PD does not sufficiently justify the “unacceptable adverse effects” necessary to support such action. Rather, the document is full of conclusions and hypotheticals. Statements of mere belief should not be able to justify the magnitude of prohibitions and restrictions the PD would permanently impose on these state-owned lands. For example, the PD inexplicably ignores science-based findings in the 2020 EIS that alternatives presented in that document would not measurably affect the health or value of the Bristol Bay fisheries. 

Finally, there is still a process pending before the Army Corps of Engineers and the applicant should be entitled to due process. As in 2014, the PD would preemptively veto the permitting process. Every project, no matter its size or location, should be allowed to go through the permitting process. That process should ultimately determine whether a project moves forward.

For these reasons, RDC urges the EPA to withdraw the flawed and speculative Proposed Determination. Thank you for the opportunity to comment, I will submit additional detailed comments before the deadline.