[Federal Register Volume 88, Number 23 (Friday, February 3, 2023)]
[Notices]
[Pages 7441-7443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02287]


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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.

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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: [email protected]. For more information 
about EPA's efforts in Bristol Bay and to review the CWA Section 404(c) 
Final Determination, see http://www.epa.gov/bristolbay.

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]
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