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By A.J. Roan
Mining News 

Permit remand a "strong win" for Pebble

Potentially setting the stage for a much different outcome North of 60 Mining News - May 5, 2023

 

Last updated 5/11/2023 at 2:36pm

The U.S. Army Corps of Engineers Alaska District headquarters.

U.S. Army Corps of Engineers

The U.S. Army Corps of Engineers is responsible for protecting many of the nation's aquatic environments, including oceans, rivers, lakes, streams, ponds, and wetlands.

Northern Dynasty Minerals Ltd. May 1 said the U.S. Army Corps of Engineer's decision to reevaluate its decision not to approve permits to develop a mine at Pebble is a strong win for the world-class copper project in Southwest Alaska

"We have been saying that the record of decision (ROD) process was not fairly conducted since 2020 and are pleased to see that the review officer has raised similar concerns on many substantive issues," said Northern Dynasty President and CEO Ron Thiessen. "The two major areas for the negative ROD decision, namely the deemed non-compliance of our comprehensive mitigation plan (CMP) and the public interest review (PIR), were highlighted by the review officer as areas where the district (Alaska) did not carry out the proper process in arriving at its decision."

As quoted in section II.A (page 27) of the remand document: " ... specifically, the district should provide complete and detailed comments to the appellant on the compensatory mitigation plan allowing the appellant sufficient time to address those comments prior to finalizing a revised mitigation plan review. The district should also note that if a compensatory mitigation plan is determined acceptable and adequately offsets direct and indirect impacts, a new PIR and 404(b)(1) analysis may be required."

"The Review Officer has clearly demonstrated that the CMP process was flawed. The administrative record does not show that we were given sufficient instruction, feedback or time to remedy the plan in order to have a chance of success," said Thiessen. "If we are given the opportunity to provide a new CMP that meets the requirements, it could remove the 'significant degradation' finding which, in turn, could have a cascading effect on the PIR and compliance with the Clean Water Act."

The cascading effects of the remand, and the U.S. Army Corps of Engineers Pacific Ocean Division's decision to remand the permit decision back to the Alaska District may even impact the U.S. Environmental Protection Agency's determination to exercise its authority under Clean Water Act Section 404(c) to restrict the discharge of dredged or fill material for the construction and operation of a mine at Pebble.

EPA's final 404(c) determination would effectively block any possibility of a Pebble project getting underway. Major concern then came from state lawmakers due to the precedent the federal agency had set by vetoing preemptively – essentially deciding Pebble would be harmful to Alaska salmon habitat without reevaluating the evidence.

Refer to EPA finalizes decision, blocks Pebble mine to learn more about the federal agency's decision regarding the Pebble Mine in the February 3, 2023 edition of North of 60 Mining News.

Map showing various regulatory boundaries for USACE Alaska District.

U.S. Army Corps of Engineers

As part of the public interest review, it was pointed out that the Army Corps Alaska District was wrong to consider potential catastrophic impacts of a tailings storage facility failure as a reason for its permit denial because the final environmental impact study for developing and operating a mine at Pebble found that the tailings storage facility design did not present any reasonably foreseeable failure risks.

A potential tailing dam failure was one of the risks EPA pointed out in justifying its final determination to restrict the discharge of dredged or fill material at Pebble.

As a result of the remand decision, and in light of the EPA's final determination, Army Corps Alaska District has been instructed to review the appeal decision and to notify the parties how it plans to proceed in the next 45 days.

"This remand decision is a 'strong win' for the project because it brings these issues to light and directs the district to address them, potentially setting the stage for a much different outcome," added Thiessen.

 

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