Rebuked by Alaska for overstepping their authority, federal environmental officials are defending the legality of a large-scale Bristol Bay watershed assessment, a draft of which is due out in May. The report aims to understand of effects of large-scale development on water quality and fisheries.
Dennis McLerran, administrator for Region 10 of the U.S. Environmental Protection Agency, outlined the EPA’s position in a letter earlier this month to Alaska Attorney General Michael C. Geraghty. The correspondence was in response to a lengthy letter from Geraghty in March, in which the attorney general argued that the assessment was premature, that the EPA lacked authority to conduct the survey and that the action conflicted with federal and state law.
A watershed assessment was requested nearly two years ago by commercial fishing groups and tribal organizations concerned that development of the proposed Pebble prospect at the headwaters of the Bristol Bay watershed could have adverse effects on the water quality and salmon fisheries, particularly in salmon spawning streams.
'Open, transparent' review
Mine proponents have maintained that developers are using technology that would allow the multi-million dollar copper, gold and molybdenum mine to be developed and operate in harmony with the fisheries.
McLerran explained in detail the EPA’s stance on the watershed assessment and offered to meet with Geraghty to discuss his concerns. “From the outset, we have stated that our goal is to conduct this scientific watershed assessment in close coordination with federal, state and tribal organizations and in an open, transparent, and public manner,” McLerran said.
The EPA administrator reminded Geraghty that the assessment came after requests in May of 2010 from nine tribes, two commercial fishing organizations, the Bristol Bay Native Corp. and others to initiate a Clean Water Act process that would prohibit or restrict discharges of dredged or fill materials associated with metallic sulfide mining in the Bristol Bay headwaters. McLerran also noted that two Alaska tribes, other tribal entities, the Pebble Limited Partnership and Alaska Gov. Sean Parnell asked the state not to take action under the Clean Water Act and instead use the standard permitting and environmental-review processes to evaluate proposed mining operations in the Bristol Bay watershed.
Subsequently, the agency has received additional requests seeking EPA action, McLerran said. In order to give due consideration to these conflicting requests, the EPA decided to collect and evaluate available scientific information on Bristol Bay fisheries and their vulnerability to large scale mining development, he said.
“The watershed assessment will provide important data that will help inform future decision making with respect to Bristol Bay – whether it be use of our authority or another action – as we work with the state and others to ensure the sustainability of the fisheries,” he said.
McLerran said that the watershed assessment clearly falls within the authorities provided in Section 104 of the Clean Water Act, and that this assessment is similar to other environmental assessments EPA has conducted to estimate the impact of proposals.
Nevertheless, Geraghty argued in his March 9 letter to the EPA that the agency’s watershed assessment effort “reaches well beyond any process or authority contemplated by “ the Clean Water Act.
The Alaska attorney general made a number of points in defense of his argument, contending that the assessment was premature, that the EPA lacked authority and that it conflicted with federal and state law.
'Premature and unprecedented'
Geraghty said both the watershed assessment and the EPA’s potential exercise of its veto authority in the absence of a permit application “are premature and unprecedented.
“A permit application describing a potential project will trigger the exercise of applicable state and federal regulatory permitting authority reviews, including an associated impacts analysis by the U.S. Army Corps of Engineers,” Geraghty said.
McLerran noted, in response, that the watershed assessment is not a regulatory action and won't have any legal consequences.
“EPA has not initiated any regulatory action,” he said. "Many of your legal concerns would only be relevant and can only be addressed in the context of a specific regulatory action,” McLerran said.
This article was originally published by the Cordova Times and is republished here with permission.