September 6, 2022

Re:       Docket ID No. EPA–R10–OW–2022–0418; Section 404(c) Proposed Determination to prohibit and restrict the use of certain waters in the Bristol Bay watershed as disposal sites for the discharge of dredged or fill material associated with mining the Pebble Deposit.

Dear Mr. Sixkiller:

The Resource Development Council for Alaska, Inc. (RDC) submits the following comments opposing the EPA’s latest effort to use Section 404(c) of the federal Clean Water Act (CWA) to preemptively restrict the Pebble Project as well as additional state-owned lands outside the Project as currently proposed.   

RDC is a statewide trade association comprised of individuals and companies from Alaska’s fishing, tourism, forestry, mining, and oil and gas industries. RDC’s membership includes Alaska Native corporations, private companies, nonprofit entities, local communities, organized labor, and industry support firms. For 47 years, RDC has advocated for a strong, diversified private sector in Alaska and to expand the state’s economic base through the responsible development of our natural resources. 

RDC opposes 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 previous 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 timing of this action is without explanation.  The EPA has been a cooperating agency involved in the Environmental Impact Statement (EIS) process for the Pebble Project over the course of three years and never raised objections of the magnitude now expressed in the PD.  

The PD goes too far and represents federal overreach.  It would preclude any activity in the watershed around the Pebble site (these are the watershed boundaries of the North Fork Koktuli, South Fork Koktuli, and Upper Talarik Creek) regardless of action by the USACE.  Without explanation, the PD undermines the extensive, multi-agency EIS for Pebble (led by the USACE) that found no harm to the Bristol Bay fishery.  The EIS specifically said that fishermen would see no reduction in fish values and that downstream waters would not see impacts beyond what would be expected to be seen in season fluctuations.  The following citations from the EIS demonstrate that project will not harm the fishery:

• ­There would be no measurable change in the number of returning salmon and the historical relationship between ex-vessel values and wholesale values. In addition, there would be no changes to wholesale values or processor operations expected for Alternative 1a. Under normal operations, the Alternatives would not be expected to have a measurable effect on fish numbers and result in long-term changes to the health of the commercial fisheries in Bristol Bay.(ES 87)
• Under normal operations, the alternatives would not be expected to have a measurable effect on fish numbers or result in long-term changes to the health of the commercial fisheries in Bristol Bay. (4.6-3)
• ­The mine site area is not connected to the Togiak, Ugashik, Naknek, and Egegik watersheds and is not expected to affect fish populations or harvests from these watersheds. (Table 4.6-1, P4.6-4)
• This alternative would not be expected to have measurable effects on the number of adult salmon, and therefore would have no impact to commercial fisheries. (Table 4.6-1, P. 4.6-4)
• As with Alternative 1a, Alternative 3 would not be expected to measurably affect the health or value of Bristol Bay salmon fishery, including permit holder earnings, permit holder value, crew earnings, fishery first wholesale values, processor earnings, or local fiscal contributions. (4.6-18)
• However, considering the physical characteristics and current fish use of habitat to be removed, the consequently low densities of juvenile Chinook and coho observed in the affected tributaries, and the few numbers of spawning coho observed (see Section 3.24, Fish Values), impacts to anadromous and resident fish populations from these direct habitat losses would not be measurable, and would be expected to fall within the range of natural variability. (4.24-46)
• Other salmon fisheries in Alaska exist in conjunction with non-renewable resource extraction industries. For example, the Cook Inlet salmon fisheries exist in an active oil and gas basin and have developed headwaters of Anchorage and the Matanuska-Susitna areas. The Copper River salmon fishery occurs in a watershed with the remains of the historic Kennecott Copper Mine and the Trans Alaska Pipeline System in the headwaters of portions of the fishery. Both fisheries average higher prices per pound than the Bristol Bay Salmon Fishery. (ES 86)
• The mine-impacted anadromous streams amount to less than 1/10th of 1% (0.08%) of all mapped anadromous streams in the Bristol Bay watershed (9819 miles). As the EIS acknowledges, impacts to salmon species are so small that they cannot be measured.

EPA’s proposed action against the Pebble Project is not just a veto of the current Pebble permit application, it is also a preemptive veto of any future proposals in the area fully blocking any development actions across 309 square miles of Alaska land.  The EPA should not be able to limit state-owned lands in such a broad-brush manner.  The land around Pebble was specifically selected by the state of Alaska as part of its statehood land opportunity.  When Alaska became a state, it was granted the opportunity to select 105 million acres for the purpose of helping the young state’s economy.  Permanent federal action blocking development of 309 square miles of Alaska’s selected lands is a violation of this agreement.  It is also a violation of the “no more” clause of the Alaska National Interest Lands Conservation Act of 1980. 

The PD fails to sufficiently justify the “unacceptable adverse effects” necessary to support this proposed 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.  As shown by the above-cited examples, 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. 

Further, 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.

At a time when copper and other critical minerals are so vital to our nation’s economy and domestic energy independence and security, the Pebble Project represents an environmentally sound and responsible resource development project.  Resource development projects are respected as some of the most environmentally safe projects in the world.  The Pebble Project, if permitted, would be held to those same and highest of environmental standards than anywhere else in the world.  For these reasons, RDC urges the EPA to withdraw the flawed, speculative Proposed Determination.

Sincerely,