Asking The EPA to Use The 404(c) of The Clean Water Act to Protect Bristol Bay

In the following letter, Executive Director Andy Wink and BBRSDA President Fritz Johnson encourage the Environmental Protection Agency (EPA) to exercise its authority under Section 404(c) of the Clean Water Act to help protect and preserve it for future generations,

            Re: Use of EPA Clean Water Act § 404(c) Authority to Protect Bristol Bay

Dear Administrator Regan:

            The Bristol Bay Regional Seafood Development Association (“BBRSDA”) represents more than 8,000 commercial fisherman whose livelihoods depend on the extraordinary Bristol Bay salmon fishery. BBRSDA is a not-for-profit organization that works to maximize the value of Bristol Bay’s fishery for our members and all who benefit from it. 

As the EPA has recognized, Bristol Bay is one of the nation’s great natural resources, and BBRSDA is writing to encourage the EPA to exercise its authority under Section 404(c) of the Clean Water Act to help protect and preserve it for future generations. The need for EPA leadership to protect Bristol Bay from the ongoing existential threat posed by hard-rock mining in the watershed remains urgent. A robust scientific record exists supporting action by the EPA, and the EPA has itself invested significant resources to develop that record. The Army Corps’ recent decision to deny a mining permit to Pebble Limited Partnership (“PLP”) confirms that Section 404(c) action by the EPA is justified, yet the continued threat to the watershed both from PLP’s continued efforts to develop the Pebble project, as well as from hard-rock mining generally, remains. 

EPA possesses the scientific facts, legal authority, and institutional purpose to take critically needed action to safeguard one of the world’s last remaining wild salmon fisheries. BBRSDA joins the numerous stakeholders urging the EPA to take action under Section 404(c) to do so. In addition to outlining the value of the resource at stake, this letter points to the fulsome existing record supporting Section 404(c) protection.  

The Bristol Bay Fishery

            The commercial salmon fishery in Bristol Bay is the most valuable salmon fishery in the world. Bristol Bay produces about half of the world’s wild sockeye harvest, in addition to robust harvests of king, chinook, and multiple other species. The scale and history of Bristol Bay’s salmon runs abundance are unmatched.

            Bristol Bay’s pristine habitat produces one of the world’s great migrations, with tens of millions of wild salmon returning every year to reproduce in inland waters. These salmon runs produce 15,000 sustainable fishery-related jobs and more than $1.5 billion in economic benefit. For BBRSDA’s members those jobs are a heritage and way of life, in addition to their livelihoods. The region’s rivers are a cornerstone of Alaska’s entire seafood industry, the state’s largest private sector employer.

Unlike any salmon fishery anywhere else in the United States, that ecological and environmental value is generated entirely from natural salmon reproduction, which if protected can continue to produce large numbers of sockeye salmon in perpetuity. The foundation of this extraordinary abundance is the ideal, unspoiled habitat that remains largely roadless and undeveloped. The pristine habitat in Bristol Bay is unique in Alaska, the United States, and, increasingly, the rest of the world. 

            The value of Bristol Bay’s fishery is magnified with each passing year. In each of the past three years, Bristol Bay has accounted for over half of Alaska’s entire commercial salmon value. The genetic diversity of Bristol Bay’s wild salmon and the quality of its habitat have sustained and increased salmon runs even as other salmon fisheries in Alaska have declined and face ongoing challenges from climate change, pollution, and threats to habitat. 

            The Bristol Bay watershed remains as it has for millennia, but it is irreplaceable once lost or degraded. No amount of remediation or compensatory mitigation can repair or replace destroyed habitat or the naturally abundant salmon runs it makes possible.  

The Need for EPA Action

            The EPA has already established the strong basis justifying use of the agency’s 404(c) authority to protect Bristol Bay from the threat posed by hard-rock mining. 

            First, following three years of sustained effort, the EPA completed a peer-reviewed, detailed, and scientifically rigorous assessment that culminated in the agency’s 2014 proposed determination to use Section 404(c) authority to stop PLP’s stated plans to mine the Pebble mineral deposit at the headwaters of vital Bristol Bay salmon rivers. See An Assessment of Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska (Final Report), U.S. EPA, Washington, DC, EPA 910-R—14-001A-C, ES, 2014 (“Watershed Assessment”); Proposed Determination to Restrict the Use of an Area As a Disposal Site; Pebble Deposit Area, Southwest Alaska, 79 Fed. Reg. 42314 (July 21, 2014) (“Proposed Determination”). Indeed, the Proposed Determination found that Section 404(c) action by the EPA was necessary and appropriate given the extreme threat to Bristol Bay’s natural resources posed by a copper mine and the unique value of the fishery. The politics may have changed since 2014, but the science, ecological value of Bristol Bay, and the threat to the fishery from hard-rock mining have not. 

            Second, the administrative record compiled during review of PLP’s application for a mining permit provided overwhelming confirmation of the EPA’s judgment set forth in the Watershed Assessment and Proposed Determination. That record is voluminous. The EPA was among the federal agencies that consulted with the Army Corps and provided substantial input on the permit application. BBRSDA actively supported the submission of numerous reports from scientists evaluating the widespread destruction of aquatic resources, pollution from multiple sources, risks of catastrophic tailings spills, degradation of habitat from the transportation corridor, biological harm, and multiple other disastrous impacts that would inevitably be caused by the Pebble mine.   

            Given that administrative record, denial of the permit was the only lawful conclusion of the permitting process, and both the Watershed Assessment and the administrative record on the permit application support EPA’s use of Section 404(c) to protect Bristol Bay’s resources. Yet BBRSDA remains concerned that the EPA not only reversed the Proposed Determination while the permit application was pending, but failed to exercise its Section 404(c) authority throughout the process even as the agency knew that the Pebble mine would have unacceptable adverse effects on Bristol Bay. Whether or not it is supplemented, the record now supports action by the EPA to protect Bristol Bay. 

            The EPA’s role in protection of Bristol Bay remains critical. PLP has mounted an administrative appeal of the Army Corps’ denial and has threatened litigation to secure a mining permit. Moreover, the “Pebble Tapes” recorded PLP executives telling potential investors that PLP has every intention of developing a mine many times the size of the one described in its own permit application, demonstrating that PLP has already willfully misled the federal government and the American people about the size, scope, and duration of its real intentions to mine the Pebble deposit. Action by the EPA would establish its judgment and confirm the Army Corps’ decision that issuance of the permit would be unlawful. PLP has also made it quite clear that it intends continue efforts to develop the Pebble deposit, and denial of one permit application will not eliminate that threat. Moreover, the Watershed Assessment remains sound science that should spur agency action; doing so would codify the EPA’s 2014 findings. 

            More broadly, mining will remain a threat to Bristol Bay so long as its mineral deposits remain in the ground. Section 404(c) authorizes the EPA to protect fishery areas from adverse effects. There is no fishery more deserving of protection than Bristol Bay, nor any adverse effect more threatening to the fishery than largescale mining operations in the heart of the watershed. BBRSDA urges the EPA to use the authority Congress granted to effect long-term protection of this vital national resource. 

Conclusion

            Bristol Bay salmon are an ecological treasure in need of appropriate protection for the sake of current stakeholders, consumers, and future generations. BBRSDA respectfully requests that the EPA utilize Section 404(c) to protect the fishery.

We greatly appreciate your consideration in this matter. We would welcome the opportunity to discuss with you Bristol Bay’s salmon industry, the threat posed by hard-rock mining in the watershed, and the scope of Section 404(c) protections to mitigate that threat.

Sincerely,

Fritz Johnson                                                                                       Andy Wink
BBRSDA President                                                                              BBRSDA Executive Director