The State of Alaska has responded to the EPA’s threatened preemptive veto of large mining operations in the Bristol Bay region of Alaska via a letter to EPA Regional Administrator Dennis McLerran dated April 29, 2014.  The letter was once again signed by Alaska’s Attorney General, Michael Geraghty.  The letter makes very interesting reading.  In parallel, the Pebble Partnership submitted similar comments.  You can find the State of Alaska letter at the following link.

Alaska Letter to EPA, April 29, 2014 

The EPA’s bogus Bristol Bay Assessment has significant problems, as would be expected from a document that was drawn up after the fact to prop up an earlier internal agency decision to kill the project.

For example, it does not describe any conditions under which the EPA would regulate how fill is used in Kvichak and Nushigak watersheds.  Additionally, until there is a mine plan, it is simply not possible for any regulatory agency to do anything other than speculate on what will or will not happen.  They will be making it up as they go, and inviting other regulators in the Army Corps and the State of Alaska to join them in a group grope.

The State letter has attached a letter from the Army Corps dated March 14, 2014 stating they have not yet started the public interest review and evaluation process, and that it would be premature to submit anything to the public record.

The EPA claims over and over that it is not possible to build water channels that mitigate or correct any damage to salmon habitat by mining.  They reference a 2006 paper multiple times to back up this assertion.  In doing so, they ignore over a century of successful mining here in Alaska and elsewhere where habitat restoration has gone wonderfully well, including mines the EPA has participated in the permitting process, like the Fort Knox Mine right here in Alaska.  In many places, the mitigated habitat has been significantly better for rearing salmon than the original undisturbed watershed.  Yes, this means we know how to raise salmon.

The letter closes with a charge that in taking this action, the EPA is conducting an illegal taking of state land via regulatory fiat.  They are violating the Statehood Compact.  They are breaking existing public law, most notably the 1972 Clean Water Act.  The State has internal EPA documents in its possession stating that the EPA wants to take their action so that it can “serve as a model of proactive watershed planning” which is a role reserved to the states, not the EPA.

The most important thing about this fight is what the EPA is not publicly saying.  The entire anti-Pebble action is an attempt by the EPA to subvert existing public law so as to set itself up as the sole regulator of watersheds nationwide, usurping statutory authority given the Army Corps of Engineers and the states.  This is a test case for a massive power grab.  And if they get away with unilaterally expanding their authority, there will be no end to their obstruction, as they will effectively have nationalized control of all development from now until when a Congress and administration steps in to stop them. 

The Army Corps of Engineers was given the power to evaluate projects and issue permits by congress in the 1972 Clean Water Act.  The EPA, which desperately wanted that power at the time, has a secondary role of reviewing and potentially vetoing those projects.  It has been scheming to regain what they believe they were denied for the last 40 years.  This is little more than a raw power grab by a feral federal agency, a power grab that was being discussed internally a full two years before they claimed to have received a formal request from local tribes to preemptively intervene.

This is going to have to be fought at the legislative and congressional levels, as the courts will not bail out the states from a lawless EPA.  We saw the latest example of that observation with the SCOTUS upholding of the bizarre Cross State Air Pollution Rule, effectively banning all new coal-fired power plants last month.

This fight is not yet over.  And the rumors investigation into RICO charges for the process of putting together the Bristol Bay Assessment continue.