OPINION: Don't trade salmon for gold
According to an article reported by Alaska Public Media on Oct. 5, Tom Collier, CEO of The Pebble Partnership, took to the podium at an industry gathering in Anchorage to present "A New Path Forward."
Summarizing his speech to the reporter ,he stated, "I gave a detailed presentation on how we were going to win this battle with the EPA — how we were going to get them off our backs and be able to go into permitting."
In documents later leaked to and reported by CNN on Oct. 24, we get a pretty clear picture how this process to "win the battle with the EPA" played out. The article included details on meetings held between CEO Tom Collier and EPA Administrator Scott Pruitt, as well as information from leaked emails between a lobbyist for The Pebble Partnership and members of President Donald Trump's EPA transition team.
According to CNN's article, the EPA was in correspondence with The Pebble Partnership long before Collier and Pruitt met on May 1, 2017. On Feb.15, 2017, a lobbyist for The Pebble Partnership, Peter Roberston, wrote the following email:
"As you may know, Pebble is trying to develop a world-class copper mine in southwestern Alaska. We have yet to submit the first of the permit applications necessary to move ahead with the mine — the permit application under section 404 of the Clean Water Act... . Do you have time to meet with me in the near future?"
An EPA transition staffer named David Schnare responded.
"I am aware of the problem in general, but do not have specifics. Can you bring with you a timeline of events and a status on the legal actions? .... I need to get this set up for the [EPA] Administrator, which means I need the full background and a specific proposal on what we can and should do."
The section of the Clean Water Act referenced in their emails, Section 404, makes it unlawful to discharge dredged or fill material into "navigable waters" without a permit. The Army Corps of Engineers, which partners with the EPA for oversight on waters, is responsible for issuing the permits of discharged or dredged material into these waters.
On Feb. 28, 13 days after those emails were sent, President Trump signed Executive Order 13778, "Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." This Executive Order directs the EPA and the Army Corps of Engineers to review and revise the June 2015 Clean Water Rule that defined the permitting jurisdiction of the Clean Water Act. The order also explicitly directs the administrator and assistant secretary of the EPA to "consider interpreting the term 'navigable waters,' as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006)."
The term "navigable waters" is only defined in the Clean Water Act as "waters of the United States," (WOTUS) creating substantial confusion over the types of water that make up "waters of the United States." The supreme court case frequently cited to determine what types of waters are included in that phrase is Rapanos v. United States, the very case referenced in the Executive Order. In his plurality opinion, Scalia referred to Webster's Dictionary to discern the word "waters."
He concluded, "...the phrase, 'the waters of the United States' includes only those relatively permanent, standing, or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,]...oceans, rivers, [and] lakes.' See Webster's Second 2882. The phrase does not included channels through which water flows intermittently, or ephemerally, or channels that periodically provide drainage for rainfall."
Current interpretation of the word "waters" takes into consideration the opinions of multiple Chief Justices, instead of relying on only one.
Relatively permanent waters are commonly known to have flow year-round or have continuous flow seasonally for greater than three months of the year. Intermittent waters contain flowing water during the wet season, but are normally dry during hotter summer months. Ephemeral waters have less flow than intermittent waters, are typically shallow, and have flowing water for brief periods in response to rainfall.
As Alaskans, we should be very concerned with these definitions, since many of our waters would not qualify for protection under these definitions. It is also unclear how "flow" would affect our rivers and streams that are frozen for the majority of the year. Would areas where water flows less than three months but remains frozen for nine, qualify for protection?
Most importantly, changing the current rule to Scalia's limited definition would threaten protection for a whopping 174 million acres of Alaska wetlands, approximately 43 percent of our state's surface area. While wetlands across the state would be threatened, Bristol Bay would likely bear the brunt of this change as it is these wetlands that The Pebble Partnership is particularly interested in.
For those who need a reminder, it was Alaska Native Tribes, commercial and sport fishing groups who petitioned the EPA to use its authority under Section 404 of the Clean Water Act to restrict or prohibit the disposal of mine waste in Bristol Bay's waters and wetlands in effort to protect the region from the Pebble Mine.
Publicly on their website, The Pebble Partnership publicly claims they "take pride in good stewardship," that their "plan includes a number of enhanced environmental safeguards." Privately, they have been working with the EPA to eliminate wetland protection and subsequently, the requirement that they submit a Section 404 permit as part of their application. Tom Collier, the Pebble Partnership, and their potential investors know they have a battle ahead of them to get this mine permitted given the unique, pristine ecosystem of Bristol Bay and the outpouring of support for anti-Pebble initiatives.
If wetlands are no longer protected under Section 404, Pebble will no longer be legally required to declare potentially damaging activities to wetlands in their application and they certainly won't have to file a permit to dump in the waters of Bristol Bay. Instead of acknowledging the inherit risks of their mine, they want to pretend the mine will have no environmental impact. Instead of working with Alaskans to develop a safer mine, The Pebble Partnership is working to manipulate the permitting process.
Apparently the EPA is open to alternative interpretations of Scalia's opinion, but we must participate in the public review process if we want our interests included in the rulemaking.
I encourage everyone who is able to participate in public meetings to show that we are paying attention, that we see the games being played with our water, our culture and our livelihoods. I encourage you to participate to make it clear that we will not let these actions go unnoticed.
The Pebble Partnership seems to think they can use their money and influence to rewrite the rules of law in their favor. As Alaskans, and as citizens of a democracy, it is our responsibility to speak out against this abuse of power.
Once again, we must tell The Pebble Partnership and the EPA that we will never trade salmon for gold. We must keep saying it until we no longer have to.