• Mark Ryan

Strange Bedfellows

I'm sure the executives at Pebble Mine are recovering from a bit of whiplash this week. The proposed Pebble Mine in Alaska has been controversial for many years. The Obama Administration 404(c)'d the Mine after a lengthy review of the science. That prompted lawsuits by Pebble [that I played a very small role in defending a witness], followed by a reversal of the EPA under the Trump administration to withdraw the 404(c). The Corps recently issued a final EIS for the project (Executive Summary attached below) finding no significant impact to the salmon fishery. The owners must have been very pleased.

Then, on August 20, the Corps issued the letter attached below requesting an extensive 404(b)(1) mitigation plan. The letter concludes that "discharges at the mine site would cause unavoidable adverse impacts to the aquatic resources and, preliminarily, that those adverse impacts would result in significant degradation of those aquatic resources." That's pretty much what EPA concluded when it issued its 404(c) on the project under the Obama administration.

According to press reports, this reversal comes from the White House. Whether that's true or not, this new wrinkle must be unwelcome news by the proponents of the mine. If the Corps insists on in-kind mitigation within the watershed, given the large number of acres of impact involved (2,825 acres of wetlands, 132.5 acres of open water, 129.5 miles of streams, not including the transportation corridor), it could drastically increase the cost of the mine. If the mine offers up a perfunctory mitigation plan that is rubber stamped by the Corps, lawsuits challenging the approval will come fast and furious, and tie it up for years in litigation.

And then there's the upcoming election. The mitigation plan will not take weeks, but months if not years to hammer out with the Corps. I suspect a Biden administration would be even less welcoming to the proposed mine. Stay tuned.

Notification Letter (002)
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