SUPPLEMENTARY INFORMATION:

I. Clean Water Act Section 404(c) Review Process

EPA's mission is to protect human health and the environment. The CWA, the objective of which is to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” 33 U.S.C. 1251(a), is essential to EPA's mission and establishes the basic structure for regulating discharges of pollutants into waters of the United States. To advance this overall objective, Section 301(a) of the CWA, 33 U.S.C. 1311(a), prohibits the discharge of any pollutant by any person into waters of the United States except as authorized by specific provisions of the Act, including a permit issued pursuant to Sections 402 or 404, 33 U.S.C. 1342; 33 U.S.C. 1344. Section 404(a) of the CWA authorizes the United States Army Corps of Engineers (USACE) to issue permits for the discharge of dredged or fill material into waters of the United States. 33 U.S.C. 1344(a). Section 404(c) of the CWA authorizes EPA to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, “whenever” it 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. 33 U.S.C. 1344(c). EPA's regulations at 40 CFR part 231 govern the Agency's exercise of its CWA Section 404(c) authority.

II. 2014 Proposed Determination

In July 2014, after careful consideration of available information, including the findings of EPA's Bristol Bay Watershed Assessment and consultation with PLP and the State of Alaska, EPA Region 10 published a Proposed Determination under Section 404(c) of the CWA to restrict the use of certain waters in the SFK, NFK, and UTC watersheds as disposal sites for dredged or fill material associated with mining the Pebble deposit (2014 Proposed Determination) for public comment.

On November 25, 2014, the U.S. District Court for the District of Alaska, in litigation brought by PLP, issued a preliminary injunction against EPA that halted EPA Region 10's CWA Section 404(c) review process until the case was resolved. Order Granting Preliminary Injunction at 1-2, Pebble Limited Partnership v. EPA , No. 3:14-cv-00171 (D. Alaska Nov. 25, 2014). On May 11, 2017, EPA and PLP settled that lawsuit and the court subsequently dissolved the injunction and dismissed the case with prejudice. As part of that settlement agreement, EPA Region 10 agreed to “initiate a process to propose to withdraw the [2014] Proposed Determination” and ultimately withdrew it in August 2019.^[1] In October 2019, twenty tribal, fishing, environmental, and conservation groups challenged EPA's withdrawal of the 2014 Proposed Determination in the U.S. District Court for the District of Alaska. This litigation ultimately resulted in an October 29, 2021 District Court decision to vacate EPA's 2019 decision to withdraw the 2014 Proposed Determination and remand the action to the Agency for reconsideration.

The District Court's vacatur of EPA's 2019 decision to withdraw the 2014 Proposed Determination had the effect of reinstating the 2014 Proposed Determination and reinitiating EPA's CWA Section 404(c) review process. The next step in the CWA Section 404(c) review process required the Region 10 Regional Administrator to decide whether to withdraw the 2014 Proposed Determination or prepare a recommended determination within 30 days. On November 23, 2021, EPA Region 10 published in the Federal Register a notice extending the applicable time requirements through May 31, 2022, to provide sufficient time for the Agency to consider information that has become available since EPA issued the 2014 Proposed Determination and determine the appropriate next step in the CWA Section 404(c) review process.

III. Proposed Mine at the Pebble Deposit

The Pebble deposit is a large, low-grade copper-, gold-, and molybdenum-bearing ore body deposit located at the headwaters of the pristine Bristol Bay watershed that underlies portions of the SFK, NFK, and UTC watersheds. The SFK, NFK, and UTC watersheds drain to two of the largest rivers in the Bristol Bay watershed, the Nushagak and Kvichak Rivers.

In December 2017, the PLP submitted a CWA Section 404 permit application to USACE to develop a mine at the Pebble deposit that triggered the development of an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act (NEPA). In response to the CWA Section 404 permit review and NEPA processes, PLP submitted a revised permit application to USACE in June 2020 ( i.e., the 2020 Mine Plan).

On July 24, 2020, USACE published a Notice of Availability for the Final EIS (FEIS) in the Federal Register and on November 20, 2020, USACE issued its Record of Decision (ROD) denying PLP's CWA Section 404 permit application on the basis that the 2020 Mine Plan would not comply with the CWA Section 404(b)(1) Guidelines and would be contrary to the public interest. By letter dated November 25, 2020, USACE notified PLP that the proposed project failed to comply with the CWA Section 404(b)(1) Guidelines because “the proposed project would cause unavoidable adverse impacts to aquatic resources which would result in Significant Degradation to aquatic resources.”

IV. Summary of Factual Basis for the 2022 Proposed Determination

The Bristol Bay watershed is an area of unparalleled ecological value, ( printed page 32023) boasting salmon diversity and productivity unrivaled anywhere in North America. The watershed provides intact, connected habitats—from headwaters to ocean—that support abundant, genetically diverse wild Pacific salmon populations. The Bristol Bay watershed supports the world's largest runs of Sockeye Salmon, producing approximately half of the world's Sockeye Salmon, as well as significant Chinook, Coho, Chum, and Pink salmon populations. Bristol Bay's salmon populations support world-class, economically important commercial and sport fisheries, as well as a more than 4,000-year-old subsistence-based way of life for Alaska Natives.

EPA Region 10 has considered the information that has become available since EPA issued the 2014 Proposed Determination, including the more than 670,000 public comments EPA received on the 2014 Proposed Determination; technical information contained in PLP's CWA Section 404 permit application and updated mine plan; analysis developed during the NEPA process and contained in USACE's FEIS and its permit denial; as well as new and potentially relevant science and technical information produced through other contemporaneous efforts. As a result of its review, EPA Region 10 has determined that the appropriate next step in this CWA Section 404(c) review process is to revise the 2014 Proposed Determination.

Construction and routine operation of the mine proposed in the 2020 Mine Plan would result in discharge of dredged or fill material into waters of the United States, including streams, wetlands, lakes, and ponds overlying the Pebble deposit and within adjacent watersheds. The direct and certain secondary effects of such discharges would result in the total loss of aquatic habitats important to anadromous fishes. These losses are the result of the construction and routine operation of the various components of the mine site, including the open pit, bulk tailings storage facility, pyritic tailings storage facility, power plant, water management ponds, water treatment plants, milling/processing facilities, and supporting infrastructure. According to the FEIS and ROD, discharges of dredged or fill material to construct and operate the mine site proposed in the 2020 Mine Plan would result in the total loss of approximately 99.7 miles (160.5 km) of stream habitat, representing approximately 8.5 miles (13.7 km) of streams with documented anadromous fish occurrence and 91.2 miles (146.8 km) of additional stream habitat. Such discharges of dredged or fill material would also result in the total loss of approximately 2,113 acres (8.6 km² ) of wetlands and other waters at the mine site.

Additional secondary effects of the proposed discharges of dredged or fill material at the mine site would degrade anadromous fishery areas downstream of the mine site. Specifically, the stream, wetland, and other aquatic resource losses from the footprint of the 2020 Mine Plan would reverberate downstream, depriving downstream anadromous fish habitats of nutrients, groundwater inputs, and other ecological subsidies from lost upstream aquatic resources. Further, streamflow alterations from water capture, withdrawal, storage, treatment, or release at the mine site are another secondary effect of the discharge of dredged or fill material associated with the construction and routine operation of the 2020 Mine Plan. Such streamflow alterations would adversely impact at least 29 miles (46.7 km) of anadromous fish streams downstream of the mine site due to greater than 20 percent changes in average monthly streamflows. These streamflow alterations would result in major changes in ecosystem structure and function and would reduce both the extent and quality of anadromous fish habitat downstream of the mine. All instances of complete loss of aquatic habitat and most impairment to fish habitat function would be permanent.

EPA Region 10 believes that the discharge of dredged or fill material associated with mining the Pebble deposit within the mine site footprint for the 2020 Mine Plan could result in unacceptable adverse effects on anadromous fishery areas in the SFK and NFK watersheds due to losses of documented anadromous fish habitat and degradation of downstream anadromous fish habitat.

Based on the same record, including information about the pristine condition and productivity of the SFK, NFK, and UTC watersheds and the documented anadromous fish habitat throughout the watersheds, EPA Region 10 has reason to believe that discharges of dredged or fill material for the construction and routine operation of a mine at the Pebble deposit anywhere in the SFK, NFK, and UTC watersheds could result in unacceptable adverse effects on anadromous fishery areas in these watersheds if the effects of such discharges are similar or greater in nature and magnitude to the adverse effects of the 2020 Mine Plan.

Accordingly, consistent with 40 CFR 231.3(a)(2), EPA Region 10 is providing public notice of and requesting public comment on the 2022 Proposed Determination to prohibit and restrict the use of certain waters in the NFK, SFK, and UTC watersheds for disposal of dredged or fill material associated with mining the Pebble deposit. The Defined Area for Prohibition is the mine site footprint for the 2020 Mine Plan. The Defined Area for Restriction encompasses certain headwaters of the SFK, NFK, and UTC watersheds where discharges associated with mining the Pebble deposit are likely.

V. Solicitation of Comments on the 2022 Proposed Determination

EPA Region 10 is soliciting comments on all matters and issues discussed in the 2022 Proposed Determination. Please see the section entitled ADDRESSES (above) for information about how to obtain a copy of the 2022 Proposed Determination and how to submit comments.

Any interested persons may submit written comments on the proposed determination. All relevant data, studies, or informal observations are appropriate. The Regional Administrator will fully consider all such comments as she decides whether to withdraw the proposed determination or forward to EPA Headquarters a recommended determination to prohibit/restrict the use of certain waters in the SFK, NFK, and UTC watersheds in southwest Alaska as disposal sites for the discharge of dredged or fill material associated with mining the Pebble deposit.

VI. Additional Background on EPA's CWA Section 404(c) Review Process for the Pebble Deposit Area

A. How to Obtain a Copy of the Bristol Bay Watershed Assessment: The Bristol Bay Watershed Assessment is available via the internet on the EPA Region 10 Bristol Bay site at www.epa.gov/​bristolbay.

B. How to Obtain a Copy of the 2014 Proposed Determination: The July 2014 Proposed Determination is available via the internet on the EPA Region 10 Bristol Bay site at www.epa.gov/​bristolbay.

C. How to Obtain a Copy of the Settlement Agreement: The May 11, 2017 settlement agreement is available via the internet on the EPA Region 10 Bristol Bay site at www.epa.gov/​bristolbay.

D. How to Obtain a Copy of the Proposal to Withdraw the 2014 Proposed Determination: The July 2017 proposal to withdraw the 2014 Proposed Determination is available via the internet on the EPA Region 10 Bristol ( printed page 32024) Bay site at www.epa.gov/​bristolbay. Information regarding the proposal to withdraw can also be found in the docket for this effort at www.regulations.gov, see docket ID No. EPA-R10-OW-2017-0369 or via the following website located at https://www.regulations.gov/​docket?​D=​EPA-R10-OW-2017-0369.

E. How to Obtain a Copy of Notification of Suspension: The February 2018 notice announcing EPA's decision to suspend the proceeding to withdraw the 2014 Proposed Determination at that time is available via the internet on the EPA Region 10 Bristol Bay site at www.epa.gov/​bristolbay. Information regarding the suspension can also be found in the docket for this effort at www.regulations.gov, see docket ID No. EPA-R10-OW-2017-0369 or via the following website located at https://www.regulations.gov/​docket?​D=​EPA-R10-OW-2017-0369.

F. How to Obtain a Copy of the Notice of Withdrawal of the 2014 Proposed Determination: The August 2019 notice of withdrawal of the 2014 Proposed Determination is available via the internet on the EPA Region 10 Bristol Bay site at www.epa.gov/​bristolbay. Information regarding the proposal to withdraw can also be found in the docket for this effort at www.regulations.gov, see docket ID No. EPA-R10-OW-2017-0369 or via the following website located at https://www.regulations.gov/​docket?​D=​EPA-R10-OW-2017-0369.

87 FR 32021