Photo by Erin McKittrick on Wikimedia Commons
J.P. Burleigh, Blog Editor, University of Cincinnati Law Review
Environmental activists rejoiced this last week after hearing that the Trump administration’s Army Corps of Engineers (“Corps”) denied a permit for the Pebble Mine Project. The project proposed to build an open-pit mine for copper, gold, and molybdenum on undeveloped land in southwest Alaska. Despite the Trump administration giving the project more deference than the Obama administration, the Corps published a letter on August 24 explaining that the project could not proceed without mitigating its adverse effects on the environment. This article explains how a broad coalition of conservation interests helped influence this result and why the mitigation requirement likely spells doom for the Pebble Mine Project.
The Pebble Mine Project proposes to build a surface mine near Alaska’s Iliamna Lake, in the headwaters area of the Bristol Bay watershed. In addition to the mine itself, the project would require infrastructure including a 270-megawatt generating power plant; earthen dams to contain waste in large reservoirs; a 192-mile natural gas pipeline; a port facility; and access roads to the mine and port. Supporters of the project argue that the Pebble Mine would bring over 16,000 jobs to rural Alaska and allow for the extraction of over $400 billion of valuable minerals.
But opposition to the Pebble Mine has been strong among those who fear that the project would harm the Bristol Bay fishery. The Bristol Bay watershed is home to several species of wild salmon that travel into headwater streams each year to spawn. About half of the world’s wild salmon come from Bristol Bay, making fishing of the area a $1.5 billion industry. Commercial fishermen, recreational anglers, and native Alaskan tribes have joined together to resist the project, believing it would pollute Bristol Bay and harm one of the strongest salmon ecosystems left in the world.
Because Pebble Mine would discharge into waters of the United States, the project requires a permit under Section 404(b) of the Clean Water Act (“CWA”). In 2014, the Obama administration’s Environmental Protection Agency (“EPA”) took steps to prevent the project from even applying for the permit. Specifically, the EPA began the process under Section 404(c) of the CWA to veto the Pebble Mine, finding that the project could cause irreversible damage to fish and fish habitat. But the Trump administration’s EPA began the process to rescind the proposed veto in 2017 and finalized that decision in 2019, clearing the way for the Pebble Mine to apply for a CWA permit.
On July 24, 2020, the Corps released a Final Environmental Impact Statement for Pebble Mine, finding that although the project would permanently remove fish habitat, that loss would not “have a measurable impact on fish populations. While the project’s supporters cheered this result, people close to the president spoke out in opposition. A former aid to Vice President Pence tweeted his disapproval of the Pebble Mine project and suggested he was lobbying the president to weigh in against the Corps issuing the necessary permit. Donald Trump Jr. echoed this sentiment in a tweet of his own:
As a sportsman who has spent plenty of time in the area I agree 100%. The headwaters of Bristol Bay and the surrounding fishery are too unique and fragile to take any chances with. #PebbleMine.
A spokesman for Pebble Mine suggested these comments were both factually wrong and inappropriate, since the president does not decide whether to issue a CWA permit.
On August 24, 2020, the U.S. Army Corps of Engineers issued a letter explaining that the project would only receive the CWA permit if the project could mitigate its adverse effects on the environment. Leaving out any reference to fish or wildlife, the Corps noted its previous finding that the Pebble Mine would adversely impact 3,285 acres of wetlands, 496.7 acres of open waters, and 185 miles of streams. To receive a CWA permit, the Corps explained, the Pebble Mine must provide a plan within 90 days for “in-kind compensatory mitigation within the Koktuli River Watershed.” In an online notice to the public the same day, the Corps explained that “the project, as currently proposed, cannot be permitted under section 404 of the [CWA]” because “the project could have substantial environmental impacts within the unique Bristol Bay watershed and lacks adequate compensatory mitigation.”
The project’s leaders have said that mitigation is a routine condition for a permit, and that that a plan is already in the works to meet the Corps’ standards. But environmental groups are heralding the letter as creating a significant obstacle, asserting that Pebble Mine will be unable to offset the damage it will create.
Opponents of the mine have reason for optimism; the Pebble Mine will likely not meet the mitigation requirement. The Corps has defined compensatory mitigation as “the restoration (reestablishment or rehabilitation), establishment (creation), enhancement, and/or in certain circumstances preservation of aquatic resources to offset unavoidable adverse impacts.”  Further, the Corps requires “in-kind” mitigation, meaning a one-for-one setoff: for every acre of waters adversely impacted, the Pebble Mine would need to restore, establish, enhance or preserve an acre of waters somewhere else. This can be done through any combination of three methods: Pebble Mine can perform the mitigation itself; Pebble Mine can pay a private company to perform the mitigation through a “mitigation bank;” or Pebble Mine can pay an fee in lieu of mitigation to a qualifying public program. Mitigating adverse impacts in this one-to-one way can be quite expensive and time-consuming. But time and money are not the greatest barriers the Corps has placed in front of the Pebble Mine.
Mitigation on the scale the Corps has called for might not be possible because of where the Corps wants mitigation performed. Sometimes mitigation can be done outside the affected area of a proposed development; that is not the case here. All mitigation must be done “in-region:” the Corps’ letter states that mitigation for the mine site must be done within the Koktuli River Watershed, where the Pebble Mine would be located. This presents two problems which will make this project’s mitigation difficult—if not impossible.
First, the Koktuli River Watershed is a relatively narrow area: the Koktuli River is but a tributary of the larger Mulchatna River, and the main stem of the Koktuli is less than 60 miles long. Compared to the what Pebble Mine needs for mitigation, this is not a large amount of waters to work with. As of the time of this article, no existing mitigation banks or in-lieu fee programs exist in the Koktuli River Watershed, according to an online registry from the Corps.
Second, the area is almost entirely wilderness. That rules out restoring, establishing, or enhancing waters there, because the ecosystem is already in pristine, wild condition. The remaining method would be to “preserve” (buy and protect) waters in enough quantity to offset the impacts of the mine.
Preservation would be challenging. While the Koktuli River Watershed might contain enough streams to offset the mine’s impact (185 miles), there might not be enough open waters (about 5 square miles) or wetlands (0.8 square miles). Even if such aquatic resources exist within the area, Pebble Mine might not be able to acquire the land: many Alaskans oppose the project and would not be willing to sell property for mitigation. On the whole, the prospect of Pebble Mine achieving the necessary mitigation within the area required by the Corps is highly unlikely.
While the Pebble Mine could in theory meet the mitigation requirement, this will be a steep hill to climb. Further, the high bar that the Corps has set for Pebble Mine suggests a departure from the deference Corps has shown the project thus far under the Trump administration. Although environmental groups continue to press for a total veto of Pebble Mine’s CWA permit, such a move is probably unnecessary to defeat the project. The winds have changed against the Pebble Mine project, which might well be dead in the water after last week’s regulatory setback.
 In Major Reversal, Trump Administration Stalls Pebble Mine, Natural Resources Defense Council (Aug 24, 2020), https://www.nrdc.org/media/2020/200824.
 Pebble Project Environmental Impact Statement: Executive Summary, U.S. Army Corps of Engineers (Jul. 24, 2020), https://pebbleprojecteis.com/files/8c7ee895-a7b2-4229-a117-7ea23d651fa0 (hereinafter “EIS Executive Summary”).
 Scott Bronstein, Curt Devine, and Drew Griffin, Alaska Pebble Mine opposed by Trump Jr. hit with unexpected setback, CNN (Aug. 24, 2020, 7:03 PM), https://www.cnn.com/2020/08/24/politics/pebble-mine-alaska-invs/index.html.
 See generally, EIS Executive Summary, supra.
 Patrick Gleason, Former Trump Advisor Urges The President To Kill Thousands Of Jobs, Forbes (Aug. 26, 2020, 6:17 PM), https://www.forbes.com/sites/patrickgleason/2020/08/26/former-trump-advisor-urges-the-president-to-kill-thousands-of-jobs/.
 What’s At Risk, Save Bristol Bay, http://www.savebristolbay.org/bristolbayatrisk.
 Chris Wood, Chris Wood cheers Bristol Bay news: Ding dong, the witch is down (but out?), Trout Unlimited (Aug. 27, 2020), https://www.tu.org/blog/ding-dong-the-witch-is-down-but-out/?utm_source=newsletter&utm_medium=email&utm_campaign=informz&_zs=5Xxtb&_zl=OG7E2.
 What’s At Risk, supra.
 33 U.S.C. § 1345(b).
 Juliet Eilperin and Brady Dennis, Obama blocked this controversial Alaskan gold mine. Trump just gave it new life., The Washington Post (May 12, 2017, 7:37 AM),https://www.washingtonpost.com/news/energy-environment/wp/2017/05/12/obama-blocked-this-controversial-alaskan-gold-mine-trump-just-gave-it-new-life/.
 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, Environmental Protection Agency (Jul. 2014), https://www.epa.gov/sites/production/files/2014-07/documents/pebble_pd_071714_final.pdf.
 EPA Withdraws Outdated, Preemptive Proposed Determination to Restrict Use of the Pebble Deposit Area as a Disposal Site, Environmental Protection Agency (Jul. 30, 2019), https://www.epa.gov/newsreleases/epa-withdraws-outdated-preemptive-proposed-determination-restrict-use-pebble-deposit.
 Pebble Project Final EIS, Section 4.34 Fish Values, U.S. Army Corps of Engineers (Jul. 2020), https://pebbleprojecteis.com/files/23524c2b-30ca-493b-9103-14bf9965795a.
 Gleason, supra.
 Devan Cole, Donald Trump Jr. opposed controversial Alaska mine that could disrupt critical salmon fishery, CNN (Aug. 7, 2020, 9:26 AM), https://www.cnn.com/2020/08/05/politics/pebble-mine-donald-trump-jr-alaska/index.html.
 Letter from David S. Hobbie, U.S. Army Corps of Engineers, to James Fueg, Pebble Limited Partnership (Aug. 20, 2020), https://pebbleprojecteis.com/files/3053b63e-0532-4c01-bedf-63b1537ba22d.
 U.S. Army Public Affairs, Army finds Pebble Mine project cannot be permitted as proposed, U.S. Army (Aug. 24, 2020), https://www.army.mil/article/238426.
 Alexis Fernandez, Proposed Pebble Mine faces setback over environmental concerns, KTUU (Aug. 24, 2020, 6:50 PM), https://www.ktuu.com/2020/08/24/proposed-pebble-mine-project-faces-setback-over-environmental-concerns/.
 Wood, supra.
 EIS Executive Summary, supra, 111 (emphasis added).
 33 CFR 332.3(f)(1).
 73 FR 19594-95.
 Koktuli River Float, Regal Air, https://regal-air.com/alaska-shore-excursions/alaska-river-rafting/koktuli-river-float/.
 Regulatory In-Lieu Fee and Bank Information Tracking System, U.S. Army Corps of Engineers, https://ribits.ops.usace.army.mil/.