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, 7441-7443 [2023-02287]
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Federal Register / Vol. 88, No. 23 / Friday, February 3, 2023 / Notices
‘‘snapshot’’ of financial and socioeconomic data. As such, these metrics
and analyses are well-suited and most
appropriate for evaluating requests for
WQS variances under 40 CFR
131.10(g)(6). The time-limited nature of
a WQS variance ensures that changes in
financial conditions would be
considered if and when there is a
request for a subsequent variance or at
the time of reevaluation for a WQS
variance with a duration longer than
five years. Because the revision of a
designated use (including a revision to
a less stringent use subcategory) or
allowing degradation of high-quality
waters could have an environmental
impact with a much longer timeframe,
EPA recommends caution when making
such WQS decisions using ‘‘snapshot’’
economic and financial information.
EPA recommends states and authorized
tribes first explore whether there are
other factors under 40 CFR 131.10(g)
that preclude attainment of the
designated use when considering a
revision to a designated use. Where
states and authorized tribes choose to
pursue a use change or degradation of
high-quality water, EPA recommends an
expanded multi-step approach to
evaluate economic impacts. EPA has
revised the FCA Guidance to better
explain the distinction between a WQS
variance and a revision to a designated
use or antidegradation review. EPA also
outlines how these recommendations
relate to the objective of the CWA to
‘‘restore and maintain the chemical,
physical, and biological integrity of the
Nation’s waters.’’
Several commentors questioned why
Alternative 2 was not recommended as
a sole basis for supporting WQS
decisions. Although financial and rate
models may provide information on the
impact of different rate scenarios over
time, such information is insufficient to
determine if required wastewater
treatment projects necessary to meet
water quality standards would result in
substantial and widespread economic
and social impacts. Financial and rate
models also do not provide information
about whether lowering of water quality
would be necessary to accommodate
important economic or social
development. Furthermore, EPA is not
aware of any specific thresholds or
benchmarks that could be uniformly
applicable across all communities to
make WQS decisions. However, EPA
agrees that financial and rate models
can be helpful as supporting
information for WQS decisions. The
agency provided additional language in
the FCA Guidance to better explain its
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views on financial and rate models in
WQS decisions.
The FCA Guidance does not alter
EPA’s review of changes to water
quality standards. The CWA specifies
that any state or tribal water quality
standard must be submitted to EPA for
review and approval or disapproval. 33
U.S.C. 1313(c). Adoption of a WQS
variance or revision of a designated use
is a change to water quality standards.
In addition, EPA can object to an
NPDES permit issued by an authorized
state or tribe if the permit does not
conform to the statute or regulations,
including the lowering of water quality
in high-quality waters without an
adequate demonstration that such
lowering of water quality is necessary
for important economic or social
development in the area in which the
high-quality waters are located. See,
e.g., 33 U.S.C. 1311(b)(1)(C) and 1342.
EPA will continue to evaluate WQS and
NPDES permits as it has for decades in
a transparent manner consistent with
applicable statutes, regulations,
guidance, and long-established policies.
IV. Conclusion
The FCA Guidance outlines strategies
for communities to support affordable
utility rates while making water quality
decisions and planning investments in
water infrastructure that are essential to
protecting clean water. EPA is
committed to ensuring that all
Americans have access to essential
water services and clean water. This
guidance provides a needed framework
that can help achieve that goal for rural,
suburban, and urban communities
across the country. The more detailed
financial analysis in the FCA Guidance
will provide communities and EPA a
clearer picture of a community’s
financial capability and strategies to
protect low-income residents while
achieving timely and equitable clean
water protections. Federal funding
initiatives and programs such as the
Bipartisan Infrastructure Law (BIL),
American Rescue Plan Act (ARPA),
State Revolving Loan Funds (SRFs),
Water Infrastructure Finance and
Innovation Act (WIFIA) and others
provide billions of dollars for state,
local, territorial, and tribal governments.
These resources create a historic
opportunity for municipalities to
address long-standing challenges with
shorter compliance schedules,
providing water quality and public
health improvements that deliver
important social, environmental, and
economic benefits to communities. EPA
will continue to consider each
community’s financial capability on a
holistic case-by-case basis. Where
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appropriate, EPA has and will continue
to consider supplemental information
submitted by the community to
negotiate reasonable and effective
schedules for implementation of the
CWA controls.
Andrew D. Sawyers,
Director, Office of Wastewater Management,
Office of Water.
[FR Doc. 2023–02288 Filed 2–2–23; 8:45 am]
BILLING CODE 6560–50–P
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
Environmental Protection
Agency (EPA).
ACTION: Notice of availability.
AGENCY:
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: hough.palmer@
epa.gov. For more information about
EPA’s efforts in Bristol Bay and to
review the CWA Section 404(c) Final
Determination, see https://www.epa.gov/
bristolbay.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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
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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
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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
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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,
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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,
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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
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7443
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]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OGC–2023–0055; FRL–10631–01–
OGC]
Proposed Consent Decree, Resource
Conservation and Recovery Act Citizen
Suit
Environmental Protection
Agency (EPA).
ACTION: Notice of proposed consent
decree; request for public comment.
AGENCY:
In accordance with the
Environmental Protection Agency (EPA)
Administrator’s March 18, 2022,
Memorandum entitled Consent Decrees
and Settlement Agreements to Resolve
Environmental Claims Against the
Agency, this will provide notice and
opportunity for public comment on a
proposed Consent Decree in the matter
of Statewide Organizing for Community
eMpowerment v. U.S. Environmental
Protection Agency, No. 1:22–cv–2562–
JDB (D.D.C.).
On August 25, 2022, a coalition of
environmental organizations filed a
complaint in the United States District
Court for the District of Columbia. In the
complaint, Plaintiffs allege that EPA has
violated section 2002(b) of the Resource
Conservation and Recovery Act (RCRA),
by failing to perform its nondiscretionary duty under to review and,
SUMMARY:
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]]>Agencies
[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.
-----------------------------------------------------------------------
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 https://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]
BILLING CODE 6560-50-P
