Will the EPA's New Rule Actually Protect Bristol Bay?

The agency has only used this veto authority 13 other times since 1980, and conservationists are hopeful the ruling will be durable enough to withstand inevitable lawsuits and future presidential administrations. For now, the coalition of hunters, anglers, commercial fishermen, tribal members, and business owners who have fought to keep the mine out of Bristol Bay are celebrating.

“To Alaskans and visitors alike, the Bristol Bay region is considered one of the world’s top destinations for hunting and fishing. Additionally, for thousands of years, the annual returns of salmon have been the foundation of Alaska Native culture and lifestyle in the region,” said Kevin Fraley, a fisheries biologist and board member for Alaska Backcountry Hunters and Anglers (BHA). “We are delighted that an additional layer of protection will be afforded to the region's ecosystems thanks to this decision.”

“Bristol Bay is one of the world’s great fishing and hunting destinations,” said Whit Fosburgh, president and CEO of the Theodore Roosevelt Conservation Partnership. “The TRCP commends the administration’s decision to safeguard the headwaters of Bristol Bay, and we remain committed to securing permanent protections for this world-class fishery.”

The Pebble Mine project was first proposed by the Pebble Limited Partnership over a decade ago. They wanted to mine the Pebble deposit, a large, low-grade deposit in southeast Alaska containing copper-, gold-, and molybdenum-bearing minerals.

But environmental and conservationist groups fought the proposal. The mine site was to be located at the headwaters of the Bristol Bay watershed, which produces approximately half of the world’s sockeye salmon. These salmon populations help maintain the productivity of the entire ecosystem, including numerous other fish and wildlife species like brown bears, rainbow trout, bald eagles, Dolly Varden, and Arctic grayling.

The EPA blocked the mine this week by issuing a preemptive veto on the Pebble Mine’s fill and dredge permit, which the company needed in order to construct and operate the mine. The agency has this power under Section 404(c) of the Clean Water Act if they determine that the project will result in “significant loss of or damage to fisheries, shellfishing, wildlife habitat, or recreation areas.”

“After extensive review of scientific and technical research spanning two decades, and robust stakeholder engagement, EPA has determined that certain discharges associated with developing the Pebble deposit will have unacceptable adverse effects on certain salmon fishery areas in the Bristol Bay watershed,” the agency said in a statement.

According to the EPA’s analysis, discharges of dredged or fill material would result in the permanent loss of approximately 8.5 miles of anadromous fish streams, 91 miles of additional streams that support anadromous fish streams, and 2,108 acres of wetlands and other waters that support anadromous fish streams.

This decision halts the mine’s construction for the foreseeable future. John Gale, BHA's vice president of policy and government relations, told MeatEater that the EPA’s 404(c) vetoes have never been reversed or overturned.

“It’s not bulletproof, but it is very durable. Never in the history of EPA’s use of that tool has a decision ever been overturned. They’ve used it incredibly judiciously. The fact that they’ve only used it a couple times before gives us some encouragement that it’s going to be enduring,” he said.

The Trump administration did attempt to revoke the 404(c) veto of Yazoo Pumps (a proposed hydraulic pump plant in Mississippi), but those efforts were unsuccessful.

The only truly permanent protection for Bristol Bay would be for Congress to pass a bill authorizing those protections. Gale said the BHA has spoken with Alaska’s delegation about such a bill, but for now “this buys us quite a bit of time, and we feel good about the decision.”

Conversely, Alaska Governor Mike Dunleavy said the EPA’s decision sets a “dangerous precedent.”

“Alarmingly, it lays the foundation to stop any development project, mining or non-mining, in any area of Alaska with wetlands and fish-bearing streams,” he said. “My Administration will stand up for the rights of Alaskans, Alaska property owners, and Alaska’s future.”

Dunleavy argued that the rule violates the Alaska Statehood Act, and he would have liked to see the agency wait until the state had a chance to weigh in through its own permitting process.

Gale said the BHA “completely disagrees.”

“We’ve seen their permitting process. If their permitting process would allow a mine like this in a place like that, it is fundamentally flawed,” he said. “Out of any project we’ve ever seen proposed in Alaska, this is the one to say no to.”

The Pebble Partnership has vowed to fight the EPA’s decision in court, and the state of Alaska is likely to follow suit. Gale said the best thing hunters and anglers can do is “pay attention.”

“Do your homework. Make sure you talk to your members of Congress and tell them this is a special place. If there is ever a bill that adds extra durability to Bristol Bay in perpetuity, we would hope they would want to help us push that through the congressional process,” he said. “Just because you don’t live in Alaska doesn’t mean you can’t make a difference.”

Feature image via Tosh Brown.