Water Docket, Environmental Protection Agency

October 17, 2017

Water Docket, Environmental Protection Agency
Mail Code 28221T
Attn.: Docket #EPA-R10-OW-2017-0369
1200 Pennsylvania Ave., N.W.
Washington, DC 20460

Submitted via email to:[email protected]

Re: Docket #EPA-R10-OW-2017-0369

To Whom It May Concern:

The Resource Development Council for Alaska, Inc. (RDC) is writing to support the Environmental Protection Agency’s (EPA) proposal to withdraw the July 2014 Proposed Determination on the Pebble Project in Southwest Alaska, Docket #EPA-R10-OW-2017-0369.

RDC is an Alaskan business association comprised of individuals and companies from Alaska’s oil and gas, mining, forest products, tourism and fisheries industries. RDC’s membership includes Alaska Native Corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.

A preemptive decision, prior to permit or project application and completion of the National Environmental Policy Act (NEPA) process, is unacceptable, whether it be approval or denial of any project in any industry. 

The pre-emptive Proposed Determination was a clear overreach and an attempt to assess the effects of a potential mining project, without the project plans. The EPA’s proposal to withdraw the pre-emptive decision will allow the project to be fully evaluated after project plans are put forward. 

RDC recognizes that withdrawal of the Proposed Determination does not remove the EPA from the process, it only rights a wrong – removal of the pre-emptive decision.

Alaska’s economy depends on responsible resource development

As the Alaskan economy is dependent on natural resource development, including mining, it is vital to have predictable and efficient federal and state permitting processes that are based on sound science. Article VIII, Section I of the Alaska Constitution mandates “the settlement of Alaska’s land and the development of its resources by making them available for maximum use consistent with the public interest,” to encourage economic prosperity for Alaskans. RDC is concerned the proposed rule will impact the ability of its membership to responsibly develop Alaska’s natural resources.

Any 404(c) action outside the existing permitting process would be an extreme case of federal overreach and an assault on Alaska sovereignty. The Pebble deposit is not located on federal land, nor inside a refuge or park. It is located on state land designated for mineral exploration. The State of Alaska depends on the responsible development of natural resources on its lands to diversify and support its economy.

The actions of the EPA undermine existing regulatory processes and set a dangerous precedent for future projects. If the EPA preemptively stops projects before they enter the permitting process, any large project could be at risk. Preemptive action by the EPA could become a new tool opponents use to stop projects, or at a minimum, introduce significant uncertainty and delay, chilling Alaska's business climate.  

Alaskans have the greatest stake in seeing that any and all development is done in a way that protects resources, including the environment. RDC believes it can be done, because it’s already being done.

The rigorous permitting process

It is a policy of RDC to advocate for predictable, timely, and efficient permitting processes that are based on sound science. RDC members firmly believe in due process and the rule of law. Alaska utilizes a well established permitting and review process, with multiple opportunities for public input, and review by local, state, and federal agencies. RDC believes the permitting process is the best place to make decisions about the merits of development projects in Alaska. 

Further, RDC is concerned the past preemptive actions of the EPA could be used on future resource development projects across the state and the Lower 48, sending a chill to investment in Alaska and elsewhere.

Alaska has enjoyed the benefits of mining for well over 100 years, with the last several decades seeing new innovations and advancements for protecting the environment. Alaska has stringent regulations to protect its lands.

Every project, no matter the size or location, should have an opportunity to be reviewed under existing legal processes. In the case of mining, there are more than 60 major permits and hundreds more from local, state, and federal agencies that must be successfully obtained. If the process determines a project as designed cannot protect the environment and other resources, it will not advance. The process will not permit one industry or resource to advance at the expense of another.

The Proposed Determination was pre-emptive and flawed

The proposed determination is not based on actual mine plans. It focuses on the effects of a mining project that has not been proposed, and for which key engineering solutions, environmental safeguards, and mitigation measures have not been provided. This is a deeply flawed speculative approach.

Any potential 404(c) actions against the Pebble Project are premature. The project has not yet been finalized and no permit applications – including detailed plans and environmental mitigation strategies – have been submitted to government agencies, nor has the NEPA process been initiated. As a result, the current assessment and any preemptive action would deprive government agencies and stakeholders of the specific information, science, and rigorous reviews that would come out of the multi-year NEPA process.

From the beginning of the flawed Proposed Determination review, RDC has opposed the EPA’s actions until there is a formal permit application to properly evaluate the project, and a thorough environmental impact statement is completed, including evaluating socioeconomic benefits of the project. 

The CWA does give the EPA authority to veto other agencies’ approval of permits, however, it is unprecedented that the EPA would administer this authority in advance of any permit application. Moreover, the agency has rarely used its veto authority and never in advance of permits being issued by other agencies.

The proposed determination ignored existing processes, undermining agency responsibilities on both the state and federal level. Further, the EPA does not have the authority under the Clean Water Act to preemptively block development in the absence of a permit application. 

The EPA must withdraw its proposed determination because it was based on an untested, ad hoc analysis that is not sanctioned by the CWA or NEPA. Once the NEPA process is initiated, the U.S. Army Corps of Engineers will prepare an Environmental Impact Statement based on project plans.

Until an application is filed describing the project in detail and an Environmental Impact Statement is completed, the EPA is prematurely determining adverse impacts based on hypothetical assessments and inapplicable modeling.


The fate of a project, including Pebble, cannot be rationally decided without consideration of the full social, economic and environmental impacts of the project. This information will be developed through the rigorous NEPA process. 

RDC urges the EPA to work in an efficient manner to withdraw the deeply flawed, speculative Proposed Determination. Now is the time to encourage responsible resource development in Alaska, and to encourage investment in Alaskan projects by way of a predictable, timely, and efficient permitting process at the state and national level. 

Thank you for the opportunity to provide comments on this important action.

Resource Development Council for Alaska, Inc.