Proposed Determination to Restrict the Use of an Area as a Disposal Site; Pebble Deposit Area, Southwest Alaska, 42314-42318 [2014-16920]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 79, Number 139 (Monday, July 21, 2014)]
[Notices]
[Pages 42314-42318]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-16920]



[[Page 42314]]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-R10-OW-2014-0505; FRL-9913-96-Region-10]


Proposed Determination to Restrict the Use of an Area as a 
Disposal Site; Pebble Deposit Area, Southwest Alaska

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability and public hearing.

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SUMMARY: Pursuant to section 404(c) of the Clean Water Act (CWA), the 
Environmental Protection Agency (EPA) Region 10 is requesting public 
comments on its proposed determination to restrict the use of certain 
waters in the South Fork Koktuli River (SFK), North Fork Koktuli River 
(NFK), and Upper Talarik Creek (UTC) watersheds in southwest Alaska as 
disposal sites for dredged or fill material associated with mining the 
Pebble deposit, a copper-, gold-, and molybdenum-bearing ore body. EPA 
Region 10 is also announcing a series of public hearings on this 
section 404(c) proposed determination.

DATES: Submit comments on the proposed determination on or before 
September 19, 2014. See PUBLIC HEARING section below for public hearing 
dates and related information.

ADDRESSES: I. How to Obtain a Copy of the Proposed Determination: The 
proposed determination is available primarily via the Internet on the 
EPA Region 10 Bristol Bay site at www.epa.gov/bristolbay. Paper copies 
are available upon request from either of the following locations:
     EPA Alaska Operations Office, 222 W 7th Avenue, Room 537, 
Anchorage, AK 99513. The telephone number for this office is (907) 271-
5083.
     EPA Region 10, Public Environmental Resource Center, 1200 
Sixth Avenue, Suite 900, Seattle, WA 98101. The telephone number for 
this office is (800) 424-4372 or (206) 553-1200.
    If you are requesting a paper copy, please provide your name, your 
mailing address, and the document title, ``Proposed Determination of 
the U.S. Environmental Protection Agency Region 10 Pursuant to Section 
404(c) of the Clean Water Act; Pebble Deposit Area, Southwest Alaska.''
    II. How to Submit Comments to the Docket at www.regulations.gov: 
Submit your comments, identified by Docket ID No. EPA-R10-OW-2014-0505, 
by one of the following methods:
     Federal eRulemaking Portal (recommended method of comment 
submission): Go to https://www.regulations.gov and follow the online 
instructions for submitting comments.
     Email: Send email to ow-docket@epa.gov. Include the docket 
number EPA-R10-OW-2014-0505 in the subject line of the message.
     Mail: Send your original comments and three copies to: 
Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 
Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. 
EPA-R10-OW-2014-0505.
     Hand Delivery/Courier: Deliver your comments to EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, 
DC 20460, Attention: Docket ID No. EPA-R10-OW-2014-0505. Such 
deliveries are accepted only during the Docket's normal hours of 
operation, 8:30 a.m. to 4:30 p.m. ET, Monday through Friday (excluding 
legal holidays). Special arrangements should be made for deliveries of 
boxed information. The telephone number for the Water Docket is (202) 
566-2426.
     Submit at Public Hearing: see PUBLIC HEARINGS section 
below.
    Instructions: EPA's policy is that all comments received will be 
included in the public docket without change and will be made available 
online at https://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected information through 
https://www.regulations.gov or email. The https://www.regulations.gov Web 
site is an ``anonymous access'' system, which means EPA will not know 
your identity or contact information unless you provide it in the body 
of your comment. If you send an email comment directly to EPA without 
going through https://www.regulations.gov, your email address will be 
captured automatically and included as part of the comment that is 
placed in the public docket and made publically available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA might not be able to consider your comment. Avoid 
the use of special characters and any form of encryption, and ensure 
that electronic files are free of any defects or viruses. For 
additional information about EPA's public docket visit the EPA Docket 
Center homepage at https://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the https://www.regulations.gov index. Some information, however, is not publicly 
available, e.g., CBI or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is publicly available only in hard copy. Publicly available 
docket materials are available either electronically at https://www.regulations.gov or in hard copy at the Water Docket, EPA Docket 
Center, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m. ET, 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744, and the telephone number 
for the Water Docket is (202) 566-2426.
    Public Hearings: In accordance with EPA regulations at 40 CFR 
231.4, the Regional Administrator determined that public hearings on 
this section 404(c) proposed determination are in the public interest. 
The hearing dates and locations are as follows:

August 12, 2014--2:00 p.m., Egan Center, Anchorage, Alaska
August 13, 2014--5:00 p.m., Nondalton, Alaska
August 13, 2014--5:00 p.m., New Stuyahok, Alaska
August 14, 2014--5:00 p.m., Dillingham, Alaska
August 14, 2014--5:00 p.m., Kokhanok, Alaska
August 15, 2014--12:00 p.m., Igiugig, Alaska
August 15, 2014--12:00 p.m., Iliamna, Alaska

    Additional hearing details and any changes to the schedule are 
available at www.epa.gov/bristolbay. The purpose of the public hearings 
is to obtain public testimony and comment on EPA Region 10's section 
404(c) proposed determination regarding mining the Pebble deposit. The 
Regional Administrator will designate the official who will preside at 
the public hearing (the Presiding Officer). Any person may appear at 
the hearing and submit oral and/or written statements or data and may 
be represented by counsel or other authorized representatives. If you 
would like to submit written comments you may do so at the public 
hearings or by

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one of the methods described in the section of this public notice 
entitled: How to Submit Comments to the Docket at www.regulations.gov.
    Members of the public can sign up to make a comment at the venue on 
the day of the meeting. The following information will be requested for 
each commenter: First name, last name, organization and title (if 
applicable), city, state, email address, and phone number. Tribal 
elders and elected officials will be invited to comment first. The 
facilitator will then use a random number system to select individuals 
who signed up to determine speaking order. Audio-visual equipment will 
not be provided.
    To maximize the number of individuals who are able to speak at the 
hearing, oral statements may be limited to two minutes per person. 
There will be no cross examination of any hearing participant, although 
the Presiding Officer may make appropriate inquiries of any such 
participant. The hearing will remain open, within reason, until 
everyone who desires to speak has the opportunity.
    EPA Region 10 will not respond to questions/comments during the 
hearing. EPA Region 10 will consider the oral and written statements 
received at the public hearings and other written comments submitted 
pursuant to the instructions set forth in the section of this public 
notice entitled: How to Submit Comments to the Docket at 
www.regulations.gov. Any person may present written statements for the 
hearing file, including rebuttals to other commenter statements, prior 
to the time the hearing file is closed to public submissions.

FOR FURTHER INFORMATION CONTACT: For information on the public comment 
period, contact the Water Docket; telephone: (202) 566-2426 or email: 
ow-docket@epa.gov. For technical information concerning the proposed 
determination, contact Judy Smith; telephone: (503) 326-6994 or email: 
r10bristolbay@epa.gov. For more information about EPA's efforts in 
Bristol Bay, copies of the section 404(c) proposed determination, or 
copies of the Bristol Bay Assessment, see https://www.epa.gov/bristolbay.

SUPPLEMENTARY INFORMATION:

I. Information About the Proposed Determination

    The U.S. Environmental Protection Agency (EPA) Region 10 is 
requesting public comment on a proposed determination to restrict the 
use of certain waters in the Bristol Bay watershed for disposal of 
dredged or fill material associated with mining the Pebble deposit, a 
large ore body in southwest Alaska. EPA Region 10 is taking this step 
because of the high ecological and economic value of the Bristol Bay 
watershed and the assessed unacceptable environmental effects that 
would result from such mining. This proposed determination relies on 
clear EPA authorities under the Clean Water Act (CWA), and is based on 
peer-reviewed scientific and technical information. Its scope is 
geographically narrow and it does not affect other deposits or mine 
claim holders outside of those affiliated with the Pebble deposit. EPA 
Region 10 is taking this step pursuant to section 404(c) of the CWA and 
its implementing regulations at 40 CFR part 231.
    Alaska's Bristol Bay watershed is an area of unparalleled 
ecological value, boasting salmon diversity and productivity unrivaled 
anywhere in North America. As a result, the region is a globally 
significant resource with outstanding value. The Bristol Bay watershed 
provides intact, connected habitats--from headwaters to ocean--that 
support abundant, genetically diverse wild Pacific salmon populations. 
These salmon populations, in turn, maintain the productivity of the 
entire ecosystem, including numerous other fish and wildlife species.
    The Bristol Bay watershed's streams, wetlands, and other aquatic 
resources support world-class, economically important commercial and 
sport fisheries for salmon and other fishes, as well as a more than 
4,000-year-old subsistence-based way of life for Alaska Natives. Each 
year Bristol Bay supports the world's largest runs of sockeye salmon, 
producing approximately half of the world's sockeye salmon. These 
sockeye salmon represent the most abundant and diverse populations of 
this species remaining in the United States. Bristol Bay's Chinook 
salmon runs are frequently at or near the world's largest, and the 
region also supports significant coho, chum, and pink salmon 
populations. Because no hatchery fish are raised or released in the 
watershed, Bristol Bay's salmon populations are entirely wild. Bristol 
Bay is remarkable as one of the last places on Earth with such 
bountiful and sustainable harvests of wild salmon. One of the main 
factors leading to the success of this fishery is the fact that its 
aquatic habitats are untouched and pristine, unlike the waters that 
support many other fisheries.
    Nearly 70% of the sockeye and large numbers of the coho, Chinook, 
pink, and chum salmon are harvested in commercial, subsistence, and 
recreational fisheries before they can return to their natal lakes and 
streams to spawn. Thus, these salmon resources have significant 
economic, nutritional, cultural, and recreational value, both within 
and beyond the Bristol Bay region. The Bristol Bay watershed's 
ecological resources generated nearly $480 million in direct economic 
expenditures and sales and provided employment for over 14,000 full- 
and part-time workers in 2009. The Bristol Bay commercial salmon 
fishery generates the largest component of this economic activity, with 
an estimated value of $300 million (sales from fishers to processors) 
and employment for over 11,000 full- and part-time workers (USEPA 2014: 
Chapter 5).
    In February 2011, Northern Dynasty Minerals Ltd. (NDM) and the 
Pebble Limited Partnership (PLP) formally submitted information to the 
U.S. Securities and Exchange Commission (SEC) that put forth plans for 
the development of a large-scale mine at the headwaters of this 
pristine ecosystem. Their proposal outlines several stages of mine 
development, the smallest being a 2.0-billion-ton mine \1\ and the 
largest being a 6.5-billion-ton mine \2\ (Ghaffari et al. 2011, SEC 
2011), both of which are larger than 90% of the known ore deposits of 
this type in the world (USEPA 2014: Chapter 4).
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    \1\ Ghaffari et al. (2011) call the 2.0 stage mine the 
``Investment Decision Case,'' which describes an initial 25-year 
open pit mine life upon which a decision to initiate permitting, 
construction, and operations may be based.
    \2\ Ghaffari et al. (2011) call the 6.5 stage mine the 
``Resource Case,'' which is based on 78 years of open pit production 
and seeks to assess the long-term value of the project in current 
dollars.
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    The Pebble deposit is a large, low-grade, porphyry copper deposit 
(containing copper-, gold-, and molybdenum-bearing minerals) that 
underlies portions of the South Fork Koktuli River (SFK), North Fork 
Koktuli River (NFK), and Upper Talarik Creek (UTC) watersheds. Based on 
information provided by NDM and PLP to the SEC (Ghaffari et al. 2011, 
SEC 2011), mining the Pebble deposit is likely to involve excavation of 
the largest open pit ever constructed in North America, covering up to 
6.9 square miles (17.8 km\2\) and reaching a depth of as much as 0.77 
mile (1.24 km) (USEPA 2014: Chapter 6); for reference, the maximum 
depth of the Grand Canyon is approximately 1 mile. Disposal of 
resulting waste material would require construction of up to three mine 
tailings impoundments covering an additional 18.8 square miles (48.6 
km\2\) and waste rock piles covering up to 8.7 square miles (22.6 
km\2\) (USEPA 2014: Chapter 6) in an area that

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contains highly productive streams and wetlands. The volume of mine 
tailings, and waste rock produced from the smallest mine proposed by 
NDM/PLP to the SEC (Ghaffari et al. 2011, SEC 2011) would be enough to 
fill a professional football stadium more than 800 times, whereas the 
largest mine would do so more than 3,900 times.
    In total, these three mine components (mine pit, tailings 
impoundments, and waste rock piles) would cover an area larger than 
Manhattan. Mine construction and operation would also require the 
construction of support facilities, including a major transportation 
corridor, pipelines, a power-generating station, wastewater treatment 
plants, housing and support services for workers, administrative 
offices, and other infrastructure. Such facilities would greatly expand 
the ``footprint'' of the mine and affect additional aquatic resources 
beyond the scope of this proposed determination. Although NDM/PLP's 
preliminary plans (Ghaffari et al. 2011, SEC 2011) could change, any 
mining of this deposit would, by necessity, require similar mine 
components, support facilities, and operational features.
    Given the extent of streams, wetlands, lakes, and ponds both 
overlying the Pebble deposit and within adjacent watersheds, excavation 
of a massive mine pit and construction of large tailings impoundments 
and waste rock piles would result in discharge of dredged or fill 
material into these waters. This discharge would result in complete 
loss of fish habitat due to elimination, fragmentation, and dewatering 
of streams, wetlands, and other aquatic resources. In addition, water 
withdrawal and capture, storage, treatment, and release of wastewater 
associated with the mine would significantly impair the fish habitat 
functions of other streams, wetlands, and aquatic resources. All of 
these losses would be irreversible.
    Based upon information known to EPA about the proposed mine at the 
Pebble deposit and its potential impact on fishery resources, and as a 
result of multiple inquires, concerns, and petitions to EPA to use its 
authorities to protect these fishery resources, EPA decided to conduct 
an ecological risk assessment before considering any additional steps. 
After three years of study, two rounds of public comment, and 
independent, external peer review, EPA released its Assessment of 
Potential Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska 
\3\ (the Bristol Bay Assessment) (USEPA 2014) in January 2014. The 
Bristol Bay Assessment established that the extraction, storage, 
treatment, and transportation activities associated with building, 
operating and maintaining one of the largest mines ever built would 
pose significant risks to the unparalleled ecosystem that produces one 
of the greatest wild salmon fisheries left in the world. In simple 
terms, the infrastructure necessary to mine the Pebble deposit 
jeopardizes the long-term health and sustainability of the Bristol Bay 
ecosystem.
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    \3\ For more information about EPA's efforts in Bristol Bay or 
copies of the Bristol Bay Assessment, see https://www.epa.gov/bristolbay.
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    The Bristol Bay Assessment characterizes the significant ecological 
resources of the region and describes potential impacts to salmon and 
other fish from large-scale porphyry copper mining at the Pebble 
deposit. The Bristol Bay Assessment evaluated these impacts using three 
mine scenarios that represent different stages of mining at the Pebble 
deposit, based on the amount of ore processed:
     Pebble 0.25 stage mine (approximately 0.25 billion tons of 
ore over 20 years);
     Pebble 2.0 stage mine (approximately 2.0 billion tons of 
ore over 25 years); and
     Pebble 6.5 stage mine (approximately 6.5 billion tons of 
ore over 78 years).
    Ghaffari et al. (2011) indicate that the total mineral resources at 
the Pebble deposit are now believed to be approximately 12 billion tons 
of ore. Thus, it is expected that development of a mine at the Pebble 
deposit would ultimately be much larger than the 0.25 stage mine and 
could exceed the 6.5 stage mine. NDM has stated to the public that 
``the Pebble deposit supports open pit mining utilizing conventional 
drill, blast and truck-haul methods, with an initial mine life of 25 
years and potential for mine extensions to 78 years and beyond'' (NDM 
2011). This statement, along with others to investors, indicate that 
NDM is actively considering a mine size between 2.0 and 6.5 billion 
tons.
    Nevertheless, EPA also assessed the impacts of a much smaller mine 
footprint in the Bristol Bay Assessment. The 0.25 stage mine is based 
on the worldwide median size porphyry copper deposit (Singer et al. 
2008). Although this smaller size is dwarfed by the mine sizes that 
NDM/PLP put forward to the SEC (Ghaffari et al. 2011, SEC 2011), its 
impacts would still be significant.
    In total, the Bristol Bay Assessment estimates that habitat losses 
associated with the 0.25 stage mine would include nearly 24 miles (38 
km) of streams, representing approximately 5 miles (8 km) of streams 
with documented anadromous fish occurrence and 19 miles (30 km) of 
tributaries of those streams (USEPA 2014: Chapter 7). Total habitat 
losses would also include more than 1,200 acres (4.9 km\2\) of 
wetlands, lakes, and ponds, of which approximately 1,100 acres (4.4 
km\2\) are contiguous with either streams with documented anadromous 
fish occurrence or tributaries of those streams. For the largest mine 
that NDM/PLP put forward to the SEC (the 6.5 stage mine), stream losses 
would expand to 94 miles (151 km), representing over 22 miles (36 km) 
of streams with documented anadromous fish occurrence and 72 miles (115 
km) of tributaries of those streams (USEPA 2014: Chapter 7). Total 
habitat losses for the 6.5 stage mine would also include more than 
4,900 acres (19.8 km\2\) of wetlands, lakes, and ponds, of which 
approximately 4,100 acres (16.6 km\2\) are contiguous with either 
streams with documented anadromous fish occurrence or tributaries of 
those streams.
    To put these numbers in perspective, stream losses for just the 
0.25 stage mine would equal a length of more than 350 football fields 
and the 0.25 stage mine wetland losses would equal an area of more than 
900 football fields. Although Alaska has many streams and wetlands that 
support salmon, individual streams, stream reaches, wetlands, lakes, 
and ponds play a critical role in protecting the genetic diversity of 
Bristol Bay's salmon populations. Individual waters can support local, 
unique populations (Quinn et al. 2001, Olsen et al. 2003, Ramstad et 
al. 2010, Quinn et al. 2012). Thus, losing these populations would 
erode the genetic diversity that is crucial to the stability of the 
overall Bristol Bay salmon fisheries (Hilborn et al. 2003, Schindler et 
al. 2010, USEPA 2014: Appendix A).
    These stream, wetland, and other aquatic resource losses also would 
reverberate downstream, depriving downstream fish habitats of 
nutrients, groundwater inputs, and other subsidies from lost upstream 
aquatic resources. In addition, water withdrawal, capture, storage, 
treatment, and release at even the 0.25 stage mine would result in 
streamflow alterations in excess of 20% in more than 9 miles (nearly 15 
km) of streams with documented anadromous fish occurrence. These 
streamflow

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changes would result in major changes in ecosystem structure and 
function and would reduce both the extent and quality of fish habitat 
downstream of the mine to a significant degree. The impacts from the 
larger mine sizes NDM/PLP has forecasted would be significantly higher. 
The 2.0 and 6.5 stage mines would result in streamflow alterations in 
excess of 20% in more than 17 miles (27 km) and 33 miles (53 km), 
respectively, of streams with documented anadromous fish occurrence 
(USEPA 2014: Chapter 7).
    The CWA is a law essential for EPA's mission, which is to protect 
and restore the environment and public health for current and future 
generations. Section 404(c) of the CWA authorizes EPA to prohibit, 
restrict, or deny the use of any defined area in waters of the United 
States for specification as a disposal site whenever it determines, 
after notice and opportunity for public hearing, that the discharge of 
dredged or fill material into the area will have an unacceptable 
adverse effect on fishery areas (including spawning and breeding 
areas). EPA has used its section 404(c) authority judiciously and 
sparingly, having completed only 13 section 404(c) actions in the 42-
year history of the CWA.
    As a first step in the regulatory process pursuant to section 
404(c), EPA Region 10 coordinated with NDM/PLP and the State of Alaska 
to provide them an opportunity to submit information that demonstrated 
either 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 fishery 
areas. EPA Region 10 met with both NDM/PLP and the State and extended 
the time period for both to submit this information.
    Both NDM/PLP and the State of Alaska submitted information that 
raised scientific and technical issues, most of which had been 
previously raised in public comments on the Bristol Bay Assessment. 
However, this information did not demonstrate to the satisfaction of 
EPA Region 10 that no unacceptable adverse effects on fishery areas 
will occur should the disposal of dredged or fill material associated 
with mining of the Pebble deposit proceed.
    Therefore, EPA Region 10 has decided to take the next step in the 
section 404(c) review process, publication of this proposed 
determination. As part of a section 404(c) proposed determination, the 
EPA Regional Administrator must identify a defined area, known as the 
disposal site, where its prohibitions or restrictions would apply. In 
this case, the proposed geographic boundaries of the potential disposal 
site are the waters within the mine claims held by NDM subsidiaries, 
including PLP, that fall within the SFK, NFK, and UTC watersheds. EPA 
Region 10 focused on this area because it determined that it best 
represents the smallest geographical area where the discharge of 
dredged or fill material associated with mining the Pebble deposit is 
most likely to occur.
    To protect important fishery areas in the SFK, NFK, and UTC 
watersheds from unacceptable adverse effects, EPA Region 10 recognizes 
that losses of streams, wetlands, lakes, and ponds and alterations of 
streamflow each provide a basis to issue this section 404(c) proposed 
determination.
    Given the proposals made by NDM/PLP to develop 2.0- and 6.5-
billion-ton mines at the Pebble deposit (Ghaffari et al. 2011, SEC 
2011) and EPA's evaluation of the 0.25-billion-ton mine (USEPA 2014), 
the Regional Administrator has reason to believe that mining of the 
Pebble deposit at any of these sizes, even the smallest, could result 
in significant and unacceptable adverse effects on ecologically 
important streams, wetlands, lakes, and ponds and the fishery areas 
they support.
    Accordingly, the Regional Administrator proposes that EPA restrict 
the discharge of dredged or fill material related to mining the Pebble 
deposit into waters of the United States within the potential disposal 
site that would, individually or collectively, result in any of the 
following.

1. Loss of Streams

    a. The loss of 5 or more linear miles of streams with documented 
anadromous fish \4\ occurrence; or
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    \4\ Anadromous fish are those that hatch in freshwater habitats, 
migrate to sea for a period of relatively rapid growth, and then 
return to freshwater habitats to spawn. For the purposes of these 
restrictions, anadromous fish refers to coho or silver (Oncorhynchus 
kisutch), Chinook or king (O. tshawytscha), sockeye or red (O. 
nerka), chum or dog (O. keta), and pink or humpback (O. gorbuscha) 
salmon.
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    b. The loss of 19 or more linear miles of streams where anadromous 
fish are not currently documented, but that are tributaries of streams 
with documented anadromous fish occurrence; or

2. Loss of Wetlands, Lakes, and Ponds

    The loss of 1,100 or more acres of wetlands, lakes, and ponds 
contiguous with either streams with documented anadromous fish 
occurrence or tributaries of those streams; or

3. Streamflow Alterations

    Streamflow alterations greater than 20% of daily flow in 9 or more 
linear miles of streams with documented anadromous fish occurrence.
    These restrictions derive from the estimated impacts resulting from 
the discharge of dredged or fill material associated with construction 
and routine operation of a 0.25 stage mine at the Pebble deposit, as 
evaluated in the Bristol Bay Assessment (USEPA 2014).
    EPA Region 10's evaluation of relevant portions of the section 
404(b)(1) Guidelines (40 CFR part 230) further demonstrates that 
discharge of dredged or fill material resulting in the level of adverse 
effects identified in the proposed restrictions could result in 
unacceptable adverse effects on fishery areas. Degradation of these 
aquatic resources would be even more pronounced given extensive 
cumulative impacts at successive stages of mine expansion (i.e., 2.0 
and 6.5 stage mines or larger) at the Pebble deposit, including 
elevated instream copper concentrations sufficient to cause direct 
toxicity to fish. Toxic effects on fish would include fish kills; 
reduced survival, growth, and/or reproduction; and reduced sensory 
acuity, which is important to salmon for locating natal streams, 
finding food, and avoiding predators.
    EPA Region 10 recognizes it has underestimated potential adverse 
effects to resources within the SFK, NFK, and UTC watersheds from 
mining the Pebble deposit for several reasons. This evaluation does not 
include footprint impacts associated with all of the components 
necessary to construct and operate such a mine (e.g., a major 
transportation corridor, pipelines, a power-generating station, 
wastewater treatment plants, housing and support services for workers, 
administrative offices, and other infrastructure). It also does not 
rely upon impacts resulting from potential accidents and failures as a 
basis for its findings. There is a high likelihood that wastewater 
treatment plant failures would occur, given the long management horizon 
expected for the mine (i.e., decades). There is also real uncertainty 
as to whether severe accidents or failures, such as a complete 
wastewater treatment plant failure or a tailings dam failure, could be 
adequately prevented over a management horizon of centuries, or even in 
perpetuity, particularly in such a geographically remote area subject 
to climate extremes. If such events were to occur, they would have 
profound ecological ramifications. By not relying on potential 
accidents and failures, EPA

[[Page 42318]]

Region 10 has employed a conservative analysis of adverse effects.
    Known compensatory mitigation techniques are unlikely to offset 
impacts of the nature and magnitude described in the proposed 
restrictions. Compensatory mitigation is the concept of improving 
stream or wetland health in other parts of the watershed to compensate 
for stream or wetland destruction or degradation in a separate area. 
Compensatory mitigation efforts typically involve restoration and 
enhancement of waters that have potential for improvement in ecological 
services. However, the waters of the Bristol Bay watershed are already 
among the most productive in the world. EPA Region 10 sees little 
likelihood that human activity could improve upon the high quality 
natural environment in the Bristol Bay watershed that nature has 
created and has thus far been preserved. Compensation methods proposed 
by PLP, including placement of in-stream structures, stream 
fertilization, and construction of spawning channels, have typically 
had only variable, local, or temporary effects, were designed for use 
in degraded watersheds, or resulted in adverse, unintended consequences 
(USEPA 2014: Appendix J).
    Mine alternatives with lower environmental impacts at the Pebble 
deposit are not evaluated in either the Bristol Bay Assessment or this 
section 404(c) proposed determination. If these proposed restrictions 
are finalized, proposals to mine the Pebble deposit that have impacts 
below each of these restrictions would proceed to the section 404 
permitting process with the U.S. Army Corps of Engineers. Any such 
proposals would have to meet the statutory and regulatory requirements 
for permitting under section 404.
    After evaluating available information, EPA Region 10 has reason to 
believe that unacceptable adverse effects on fishery areas (including 
spawning and breeding areas) could result from the discharge of dredge 
or fill material associated with mining the Pebble deposit. Further, it 
has not been demonstrated to the satisfaction of EPA Region 10 that no 
unacceptable adverse effect(s) will occur.
    EPA Region 10 is soliciting public comment on all issues discussed 
in this proposed determination, including likely adverse impacts to 
fishery resources, mitigation measures to potentially address these 
impacts, and other options to restrict or prohibit potentially harmful 
discharges of dredged or fill material associated with mining the 
Pebble deposit. All comments will be fully considered as EPA Region 10 
decides whether to withdraw the proposed determination or forward to 
EPA Headquarters a recommended determination to restrict the use of 
certain waters in the SFK, NFK, and UTC watersheds in southwest Alaska 
as disposal sites for the discharge of dredged or fill material 
associated with mining the Pebble deposit. Should EPA Region 10 make a 
recommended determination, EPA Headquarters will then determine, based 
on the recommended determination, public comments received on the 
proposed determination, and all other available, relevant information, 
whether to issue a final determination under section 404(c).

II. Solicitation of Comments on the Proposed Determination

    Please see the section above entitled ADDRESSES for information 
about how to obtain a copy of the proposed determination and how to 
submit comments on the proposed determination. EPA Region 10 is 
soliciting comments on all issues discussed in the proposed 
determination. In particular, we request:
    (1) Comments regarding whether the proposed determination should 
become the recommended determination and ultimately the final 
determination, and corrective action that could be taken to reduce the 
adverse impact of the discharges.
    (2) Additional information on the likely adverse impacts on fish 
and other ecological resources of the receiving waters that would be 
directly or indirectly affected by mining the Pebble deposit (including 
the SFK, NFK, and UTC and downstream reaches of the Nushagak and 
Kvichak Rivers).
    (3) Additional information on the water quality, flora, fauna, and 
hydrology of the waters identified in No. 2 above, and information on 
the fish species that would be affected by aquatic ecosystem changes if 
the discharges from the project occur.
    (4) Additional information about wildlife species that would be 
affected if the discharges from the project occur.
    (5) Additional information about recreational uses of the project 
area and how they would be impacted if the discharges from the project 
occur.
    (6) Additional information about drinking water (including 
municipal water supplies and private sources of drinking water such as 
streams and/or wells) and how they would be impacted if the discharges 
from the project occur.
    (7) Additional information on the potential for mitigation to be 
successful in reducing the impacts of the project.
    (8) Comments regarding the approach used to define the potential 
disposal site, including how EPA Region 10 weighed the factors 
discussed in section 2.2.3 and whether there are other factors or 
approaches EPA Region 10 should consider for defining the potential 
disposal site.
    (9) Whether the discharge of dredged or fill material associated 
with the project should be completely prohibited, restricted as 
proposed, restricted in another manner, or not restricted at all at 
this time. In particular, EPA Region 10 is also seeking comment on 
whether environmental effects associated with other mine stages or 
scenarios (e.g. environmental effects from mining approximately 2.0 
billion tons of ore over 25 years) could provide a basis for 
alternative or additional restrictions.
    (10) Comment on the definitions provided in Section 5.
    (11) Comment on whether and how EPA Region 10's action under 
section 404(c) should consider discharge of dredged or fill materials 
beyond those associated with the mine pit, tailings dam, and waste rock 
piles, to include such discharges associated with the construction of 
other mine infrastructure (e.g., wastewater treatment facilities, 
transportation corridors, etc.).

All relevant data, studies, or informal observations are appropriate. 
The record will remain open for comments until September 19, 2014. All 
comments will be fully considered as EPA Region 10 decides whether to 
withdraw the proposed determination or forward to EPA Headquarters a 
recommended determination to restrict the use of certain waters in the 
SFK, NFK, and UTC watersheds in southwest Alaska as disposal sites for 
the discharge of dredged or fill material associated with mining the 
Pebble deposit.

Dennis J. McLerran,
Regional Administrator, EPA Region 10.
[FR Doc. 2014-16920 Filed 7-18-14; 8:45 am]
BILLING CODE 6560-50-P