By: Evan Callahan

Bristol Bay is the easternmost arm of the Bering Sea in southwest Alaska and a global hub for salmon fishing.[i] Home to the world’s largest salmon runs, the bay and its estuaries provide roughly half of the world’s supply of sockeye salmon.[ii] Not to be confused with just a body of water, Bristol Bay makes up 40 million acres, 27.5 million of which are land and 12.5 million marine waters.[iii] The Bristol Bay watershed, though remote, is home to tribal governments and numerous animal species, chief among those being all five species of Pacific salmon found in North America.[iv] Because no hatchery fish are raised or released in the watershed, Bristol Bay’s salmon populations are entirely wild.[v] The sockeye salmon fishing industry alone supports 13 thousand jobs and creates $1.5 billion annually in economic activity.[vi]

The watershed also contains considerable mineral resources, with the potential for large-scale mining development being greatest for copper and gold deposits.[vii] Because the deposits are low-grade—they contain small amounts of metals relative to the amounts of ore—mining will be economic only if conducted over a large area.[viii] And this, as a result of the mining and processing, creates large amounts of waste.[ix]

In 1987, the “Pebble Deposit” was discovered.[x] The following ten years revealed the deposit to be one of the largest gold and copper reserves in the world, luring global investment.[xi] In 2007, the mining companies Anglo American and Northern Dynasty formed a 50/50 joint venture to develop Pebble Mine.[xii] Shortly thereafter, the unified opposers of the prospect began to make their voices heard. National Geographic in 2012 would label the mine opponents as an “uncommonly savvy patchwork of native groups, commercial fishermen, village councils, local residents, outfitters, conservationists, and others united in the conviction that the environmental risks, especially for salmon, greatly outweigh the economic benefits.”[xiii] By 2013 Anglo American pulled out after already spending $541 million on the project, leaving Northern Dynasty full control.[xiv]

Plans for Pebble Mine have aimed to develop it by way of an open pit mine—possibly the largest mine of its type in North America.[xv] Though a common form of mineral mining, it is particularly damaging to the environment because of the increased amounts of ore needed to be mined to extract the desired minerals.[xvi] Environmental hazards are present during every step of the open-pit process.[xvii] Hardrock mining exposes rock that has laid unexposed for geological eras; when crushed, they expose radioactive elements, asbestos-like materials, and metallic dust.[xviii] Residual rock slurries—mixtures of pulverized rock and liquid—are produced, and toxic and radioactive elements from the liquids can leak into the bedrock or, in this case, the numerous estuaries of the Bristol Bay watershed.[xix]

In 2014, the Environmental Protection Agency (“EPA”) of the Obama administration utilized a rarely used Clean Water Act § 404(c) provision to block Pebble Mine’s development, citing the potential of “irreversible harm.”[xx] The EPA was temporarily successful in halting development. However, a new permit-favoring EPA under the Trump administration decided to reconsider the 2014 policy to restrict the mine plan.[xxi] The risks of Pebble Mine could not be ignored, however. In July of 2020, the Army Corps of Engineers denied key authorization for the mine following an environmental review from the agency, concluding that the project “would result in significant degradation of the aquatic ecosystem.”[xxii]

In April, fifty investors representing more than $105 billion called on the EPA and Congress to permanently protect Bristol Bay, urging the EPA to again use its § 404(c) authority and Congress to “enact a National Fisheries Area to provide permanent federal protection against large-scale mining within the Bristol bay watershed.”[xxiii] Additionally, as recently as September 9th, the current EPA has asked an Alaska federal judge overseeing a challenge to the Trump-era move to vacate and remand it to the agency, which would then reinstall its 2014 policy.[xxiv]

The time has come to end the equivocation over Pebble Mine and enforce permanent federal protections for the Bristol Bay watershed. The court should grant the EPA’s motion, citing the agency’s § 404(c) veto power to “prohibit, restrict, or deny the discharge of dredged or fill material at defined sites in waters of the United States… whenever it determines… that use of such sites for disposal would have an unacceptable adverse impact on… various resources, including fisheries, wildlife, municipal water supplies, or recreational areas.”[xxv] Pebble Mine fits the bill completely. Regardless of the federal court’s decision, Congress should take legislative action to permanently prohibit mining in the watershed, most importantly near the vulnerable estuaries where mining waste would seriously harm the wildlife and threaten the livelihood of local residents.

[i] Clark Mindock, Investors Call for Permanent Bristol Bay Protections, Law360 (Apr. 8, 2021, 4:27 PM) https://www.law360.com/articles/1373197/investors-call-for-permanent-bristol-bay-protections [https://perma.cc/TJY6-CS9A].

[ii] Proposed Determination of the U.S. Environmental Protection Agency Region 10 Pursuant to Section 404(c) of the Clean Water Act Pebble Deposit Area, Southwest Alaska, EPA (July 2014) https://www.epa.gov/sites/default/files/2014-07/documents/pebble_es_pd_071714_final.pdf [https://perma.cc/RYP7-SFR5].

[iii] Explore Bristol Bay through our maps, Bristol Bay Native Corp. https://www.bbnc.net/our-corporation/land/maps/ (last viewed Oct. 22, 2021) [https://perma.cc/97VB-3TD9].

[iv] About Bristol Bay, EPA https://www.epa.gov/bristolbay/about-bristol-bay (last viewed Sept. 9, 2021) [https://perma.cc/MQ9C-X3Q8].

[v] See, e.g., id.; Michael Phillis, 9th Circ. Says EPA’s Move On Alaska Mine Can Be Challenged, Law360 (June 17, 2021, 8:51 PM) https://www.law360.com/articles/1395236/9th-circ-says-epa-s-move-on-alaska-mine-can-be-challenged [https://perma.cc/GXK2-B3UV].

[vi] Lacey McCormick, Biden Admin Moves to Stop Risky Pebble Mine, Nat’l Wildlife Fed’n (Sept. 9, 2021) http://nwf.org/Latest-News/Press-Releases/2021/09-09-21-Blocking-Pebble-Mine [https://perma.cc/5RQT-KNAY].

[vii] Id.

[viii] Id.

[ix] Id.

[x] FACTBOX-History of Alaska’s Pebble Mine project: a long-running saga, Reuters (Aug. 25, 2020, 2:46 PM) https://www.reuters.com/article/usa-alaska-pebblemine-history-idUSL1N2FR1JK [https://perma.cc/WB5C-J2M3].

[xi] Id.

[xii] See id.

[xiii] Id.

[xiv] Id.

[xv] See Bristol Bay, supra note iii.

[xvi] See Environmental Risks of Mining, Mass. Inst. Tech. http://web.mit.edu/12.000/www/m2016/finalwebsite/problems/mining.html (last viewed Oct. 22, 2021) [https://perma.cc/6MZT-9UT6].

[xvii] Id.

[xviii] Id.

[xix] See id.

[xx] Id.

[xxi] Id.

[xxii] Becky Bohrer, EPA seeks to restart process that could restrict Alaska mine, AP News (Sept. 9, 2021) https://apnews.com/article/business-environment-and-nature-alaska-environment-salmon-0a5bb42fb7c63f4523c9c8b82b7372ca [https://perma.cc/7A32-U2N4].

[xxiii] Taryn Kiekow Heimer, Investors Say No to Pebble Mine, Yes to Bristol Bay—Again, Nat’l Res. Def. Council (Apr. 7, 2021) https://www.nrdc.org/experts/taryn-kiekow-heimer/investors-say-no-pebble-mine-yes-bristol-bay-again [https://perma.cc/FM9S-BTAF].

[xxiv] Juan Carlos Rodriguez, EPA Moves To Block Pebble Mine Again, Law360 (Sept. 9, 2021, 8:48 PM) https://www.law360.com/environmental/articles/1420347/epa-moves-to-block-pebble-mine-again [https://perma.cc/7E9V-FYWE].

[xxv] Restriction of Disposal Sites under CWA Section 404(c), EPA https://www.epa.gov/cwa-404/restriction-disposal-sites-under-cwa-section-404c (last viewed Oct. 22, 2021) [https://perma.cc/A58J-ZKB5].