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Developers still deserve their day in the bureaucracy to make a case

Posted: September 4, 2013 - 12:00am

This editorial first appeared in the Fairbanks Daily News-Miner:

An important policy call awaits Environmental Protection Agency Administrator Gina McCarthy, who just visited Alaska. Will she use a section of the federal Clean Water Act to pre-empt any further consideration of the Pebble mine?

Doing so would be an abuse of a questionable authority using incomplete information.

McCarthy visited the Bristol Bay area during her visit and heard a lot of opposition to the mine, as well as some support. Alaskans obviously are divided about the wisdom of allowing the mine.

That division occurs despite the absence of a specific application to develop the Pebble deposit. The Pebble Partnership, which owns the ground, has outlined a likely scenario for the mine, but it hasn’t settled on a specific development plan.

Opponents hope McCarthy will relieve the Pebble Partnership of the need to finish its plan by effectively prohibiting a mine in the area beforehand. The partnership argues that the administrator should do no such thing before having a specific application to consider.

That makes sense, but opponents nonetheless argue that McCarthy should use Section 404(c) of the Clean Water Act, which governs the disposal of dredged or fill material, to stop any further consideration.

The subsection says this: “The administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas.”

Last year, in a letter to a congressman, EPA Associate Administrator Arvin Ganesan offered this interpretation of that law: “The plain language of the statute and the agency’s long-standing regulations clearly authorize the administrator to prohibit or restrict use of a defined area of the waters of the U.S. prior to the submittal of an application for a CWA Section 404 permit.”

This begs a question: How can the administrator determine that a mine’s discharge will have an “unacceptable adverse effect” without having an application that outlines the extent or nature of that discharge? This interpretation of the law makes no sense. Employing it, as outlined by Ganesan, would be an abuse of the agency’s authority.

The EPA’s recently completed Bristol Bay watershed assessment was pushed by opponents of the Pebble mine in hopes that it would provide the basis to prohibit a “defined area as a disposal site” — i.e., all the land near the Pebble deposit. The assessment provides no such basis. Besides the flaws described by the Pebble Partnership and others (see Pebble CEO John Shively’s May 26 commentary in the Daily News-Miner), the assessment’s conclusions are too indefinite to justify a pre-emption.

The assessment said that “assuming no significant accidents or failures, the development and routine operation of one large-scale mine would result in significant impacts on fish populations in streams surrounding the mine site.” Yes, but let’s reiterate that geographical description for emphasis: “in streams surrounding the mine site.” Those streams are the far upper reaches of the Koktuli River and Upper Talarik Creek. The statement cannot be applied to the entire Bristol Bay watershed.

What, though, would happen in a “significant” accident? The assessment says history “suggests that, over the life span of a large mine, at least one or more accidents or failures could occur, potentially resulting in immediate, severe impacts on salmon and detrimental, long-term impacts on salmon habitat and production.”

Fair enough. But what about this particular mine? Section 404(c), opponents argue, allows the administrator to stop a mine when she decides it “will have an unacceptable adverse effect.” The assessment, even with its shortcomings, falls far short of supporting such a conclusion about the Pebble mine, in part because the mine’s developers have not yet applied for the permit.

The Pebble Partnership should be given the chance to make its case. It has some tough hurdles. Pre-emption based on a flawed law and a flawed process shouldn’t be among them.

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