Notice2023-02287
Final Determination To Prohibit the Specification of and Restrict the Use for Specification of Certain Waters Within Defined Areas as Disposal Sites; Pebble Deposit Area, Southwest Alaska
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 3, 2023
Issuing agencies
Environmental Protection Agency
Abstract
Pursuant to Section 404(c) of the Clean Water Act (CWA), the Environmental Protection Agency (EPA) is issuing a Final Determination to prohibit the specification of and restrict the use for specification of certain waters in the South Fork Koktuli River (SFK), North Fork Koktuli River (NFK), and Upper Talarik Creek (UTC) watersheds as disposal sites for certain discharges of dredged or fill material associated with developing the Pebble deposit, a copper-, gold-, and molybdenum-bearing ore body located in Southwest, Alaska.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 23 (Friday, February 3, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 23 (Friday, February 3, 2023)]
[Notices]
[Pages 7441-7443]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-02287]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[EPA-R10-OW-2022-0418; FRL 10624-01-OW]
Final Determination To Prohibit the Specification of and Restrict
the Use for Specification of Certain Waters Within Defined Areas as
Disposal Sites; Pebble Deposit Area, Southwest Alaska
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability.
-----------------------------------------------------------------------
SUMMARY: Pursuant to Section 404(c) of the Clean Water Act (CWA), the
Environmental Protection Agency (EPA) is issuing a Final Determination
to prohibit the specification of and restrict the use for specification
of certain waters in the South Fork Koktuli River (SFK), North Fork
Koktuli River (NFK), and Upper Talarik Creek (UTC) watersheds as
disposal sites for certain discharges of dredged or fill material
associated with developing the Pebble deposit, a copper-, gold-, and
molybdenum-bearing ore body located in Southwest, Alaska.
FOR FURTHER INFORMATION CONTACT: For information concerning the Final
Determination, contact Palmer Hough, Oceans, Wetlands and Communities
Branch, Office of Water (4504-T), Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number (202)
566-1374; email address: <a href="/cdn-cgi/l/email-protection#3b53544e5c53154b5a57565e497b5e4b5a155c544d"><span class="__cf_email__" data-cfemail="fb93948e9c93d58b9a97969e89bb9e8b9ad59c948d">[email protected]</span></a>. For more information
about EPA's efforts in Bristol Bay and to review the CWA Section 404(c)
Final Determination, see <a href="http://www.epa.gov/bristolbay">http://www.epa.gov/bristolbay</a>.
SUPPLEMENTARY INFORMATION:
I. Clean Water Act Section 404(c) Review Process
The 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
[[Page 7442]]
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 Section 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 at specified disposal sites. 33 U.S.C. 1344(a). Section 404(b)
provides, subject to Section 404(c) of the CWA, each such disposal site
shall be specified for each such permit by USACE. 33 U.S.C. 1344(a). 33
U.S.C. 1344(b). Section 404(c) of the CWA authorizes the 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). The EPA's regulations at 40 CFR part 231 govern the
Agency's exercise of its CWA Section 404(c) authority.
II. Proposed Mine at the Pebble Deposit
The Pebble deposit in Southwest Alaska is a large, low-grade
copper-, gold-, and molybdenum-bearing ore body deposit located at the
headwaters of the largely undeveloped Bristol Bay watershed that
underlies portions of the SFK, NFK, and UTC watersheds, which drain to
two of the largest rivers in the Bristol Bay watershed, the Nushagak
and Kvichak Rivers.
In December 2017, Pebble Limited Partnership (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, 85 FR 44890, 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.''
III. 2022 Proposed Determination
In January 2022, consistent with its regulatory procedures for
proposed determinations at 40 CFR 231.3(a), EPA Region 10 notified
USACE, the Alaska Department of Natural Resources (ADNR), PLP, Pebble
East Claims Corporation, Pebble West Claims Corporation, and Chuchuna
Minerals (the Parties) of EPA Region 10's intention to issue a revised
proposed determination because, based on a review of information
available to that date, it continued to believe that the discharge of
dredged or fill material associated with mining the Pebble deposit
could result in unacceptable adverse effects on important fishery
areas. EPA Region 10 provided the Parties with an opportunity to
consult with the Region and to submit information for the record to
demonstrate that no unacceptable adverse effects would result from
discharges associated with mining the Pebble deposit or that actions
could be taken to prevent unacceptable adverse effects on important
fishery areas.
ADNR, PLP, and Chuchuna Minerals submitted response letters, and
the EPA met individually with PLP and Chuchuna Minerals. None of the
Parties demonstrated to the satisfaction of EPA Region 10 that no
unacceptable adverse effects would occur as a result of the discharge
of dredged or fill material associated with mining the Pebble deposit.
Thus, EPA Region 10 decided that the appropriate next step in this CWA
Section 404(c) process was the publication of a revised proposed
determination (the 2022 Proposed Determination).
Accordingly, on May 26, 2022, EPA Region 10 published in the
Federal Register a notice of availability and notice of public hearings
for the 2022 Proposed Determination for the Pebble Deposit Area,
Southwest Alaska issued pursuant to Section 404(c) of the Clean Water
Act (CWA) (87 FR 32021). On June 16 and 17, 2022, the EPA Region 10
held three public hearings. On June 30, 2022, the EPA published in the
Federal Register a Notice of extension of public comment period and
public hearing comment period through September 6, 2022 (87 FR 39091).
On September 6, 2022, EPA Region 10 published in the Federal
Register a notice to extend the time period provided in 40 CFR 231.5(a)
to either withdraw the proposed determination or to prepare a
recommended determination through no later than December 2, 2022, to
help ensure full consideration of the extensive administrative record,
including all public comments (87 FR 54498, September 6, 2022). In
addition to the testimony taken at the hearings, EPA Region 10 received
more than 582,000 written comments during the public comment period.
IV. Recommended Determination
EPA Region 10 completed its review of the extensive administrative
record, including all public comments, and the Regional Administrator
determined that the discharge of dredged or fill material associated
with developing the Pebble deposit would be likely to result in
unacceptable adverse effects on anadromous fishery areas. Accordingly,
EPA Region 10 prepared, and on December 1, 2022, transmitted to the
EPA's Assistant Administrator for Water a Recommended Determination,
along with the administrative record, for review and final action.
On December 2, 2022, the Assistant Administrator for Water notified
the Parties that she had received EPA Region 10's Recommended
Determination and, consistent with the EPA's CWA Section 404(c)
regulations at 40 CFR 231.6, provided them the opportunity to notify
the EPA of their intent to take corrective action to prevent
unacceptable adverse effects on anadromous fishery areas from certain
discharges of dredged or fill material associated with developing the
Pebble deposit.
ADNR, PLP, USACE, and Chuchuna Minerals submitted written responses
to the EPA's notification letters. ADNR also requested a meeting with
the EPA. The EPA met with ADNR and other representatives from the State
of Alaska. None of the Parties identified corrective action to prevent
unacceptable adverse effects satisfactory to the Assistant
Administrator for Water.
After reviewing EPA Region 10's Recommended Determination; the
extensive administrative record supporting the Regional Administrator's
decision, including all public comments; letters from ADNR, PLP,
[[Page 7443]]
Chuchuna Minerals, and USACE; and considering the information provided
during the Agency's meeting with the State of Alaska, the Assistant
Administrator for Water has determined that certain discharges of
dredged or fill material associated with developing the Pebble deposit
into certain waters of the United States will have unacceptable adverse
effects on anadromous fishery areas and affirms the Recommended
Determination.
V. Final Determination
Based on information in PLP's CWA Section 404 permit application,
the FEIS, and the ROD, discharges of dredged or fill material to
construct and operate the 2020 Mine Plan's proposed mine site would
result in the permanent loss of approximately 8.5 miles (13.7 km) of
anadromous fish streams, 91 miles (147 km) of additional streams that
support anadromous fish streams, and approximately 2,108 acres (8.5
km2) of wetlands and other waters in the SFK and NFK watersheds that
support anadromous fish streams. These discharges would also result in
streamflow alterations that would adversely affect approximately 29
miles (46.7 km) of additional anadromous fish streams downstream of the
mine site due to greater than 20 percent changes in average monthly
streamflow.
The EPA has determined that the large-scale loss of and damage to
headwater streams, wetlands, and other aquatic resources that support
salmon populations in the SFK and NFK watersheds from the discharge of
dredged or fill material for the construction and routine operation of
the 2020 Mine Plan will have unacceptable adverse effects on anadromous
fishery areas in the SFK and NFK watersheds. The EPA has also
determined that discharges of dredged or fill material for the
construction and routine operation of a mine to develop the Pebble
deposit anywhere in the mine site area that would result in the same or
greater levels of loss or streamflow changes as the 2020 Mine Plan also
will have unacceptable adverse effects on anadromous fishery areas in
the SFK and NFK watersheds, because such discharges would involve the
same aquatic resources characterized as part of the evaluation of the
2020 Mine Plan.
To prevent these unacceptable adverse effects, the Final
Determination prohibits the specification of certain waters of the
United States in the SFK and NFK watersheds as disposal sites for the
discharge of dredged or fill material for the construction and routine
operation of the 2020 Mine Plan, including future proposals to
construct and operate a mine to develop the Pebble deposit with
discharges of dredged or fill material into waters of the United States
that would result in the same or greater levels of aquatic resource
loss or streamflow changes as the 2020 Mine Plan. The Defined Area for
Prohibition encompasses certain headwaters of the SFK and NFK
watersheds and is delineated by the entirety of the Public Land Survey
System (PLSS) quarter sections where mine site discharges were proposed
in PLP's 2020 Mine Plan.
Separately, the EPA has also determined that discharges of dredged
or fill material associated with future proposals to construct and
operate a mine to develop the Pebble deposit will have unacceptable
adverse effects on anadromous fishery areas (including spawning and
breeding areas) anywhere in the SFK, NFK, and UTC watersheds if the
adverse effects of such discharges are similar or greater in nature and
magnitude to the adverse effects of the 2020 Mine Plan.
To prevent these unacceptable adverse effects, the Final
Determination restricts the use for specification of certain waters of
the United States in the SFK, NFK, and UTC watersheds as disposal sites
for the discharge of dredged or fill material associated with future
proposals to construct and operate a mine to develop the Pebble deposit
with discharges of dredged or fill material into waters of the United
States that would result in adverse effects similar or greater in
nature and magnitude to the adverse effects of the 2020 Mine Plan. The
Defined Area for Restriction encompasses certain headwaters of the SFK,
NFK, and UTC watersheds where discharges associated with developing the
Pebble deposit are likely. To the extent that future discharges are
subject to the prohibition, the restriction will not apply.
The aquatic resources that would be lost or damaged by the
discharges evaluated by the EPA play an important role in supporting
salmon populations in the SFK, NFK, and UTC watersheds. Such resources
are also integral components of a larger ecosystem, which helps support
the health of the Bristol Bay watershed, an area of unparalleled
ecological value, boasting salmon diversity and productivity unrivaled
anywhere in North America. The watershed is made up of intact,
connected habitats--from headwaters to ocean--that support abundant,
genetically diverse wild Pacific salmon populations. The Bristol Bay
watershed's Sockeye Salmon run is the world's largest, producing
approximately half of the world's Sockeye Salmon. The watershed's
Chinook, Coho, Chum, and Pink salmon populations are also significant.
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.
Proposals to discharge dredged or fill material into waters of the
United States associated with developing the Pebble deposit that are
not subject to this final determination remain subject to all statutory
and regulatory authorities and requirements under CWA Section 404.
Considering the immense and unique economic, social, cultural, and
ecological value of the aquatic resources in the region, including the
fishery areas in the SFK, NFK, and UTC watersheds and their
susceptibility to damage, the EPA will carefully evaluate all future
proposals to discharge dredged or fill material in the region.
Radhika Fox,
Assistant Administrator.
[FR Doc. 2023-02287 Filed 2-2-23; 8:45 am]
BILLING CODE 6560-50-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on February 3, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.