Northern Dynasty, the Canadian company that owns the contentious Pebble project, in Alaska’s Bristol Bay, will in January submit its request for an appeal of the US Army Corps of Engineers’ (USACE’s) negative record of decision (RoD).
The company said on Thursday it would argue that the USACE’s mitigation requirements for Pebble were contrary to policy and precedent in Alska and that the agency’s rejection of the mining firm’s compensation mitigation plan (CMP) was procedurally and substantively invalid.
The USACE issued a finding this summer that Pebble would cause “significant degradation” to aquatic resources in the project area, and on that basis issued mitigation requirements that the Pebble Limited Partnership had to meet.
“Although we believe the USACE’s ‘significant degradation’ finding to be contrary to law and unsupported by the administrative record as established by the environmental impact statement (EIS), we set out in good faith to meet their demand for in-kind and in-watershed mitigation at a very high and unprecedented ratio for Alaska – and after a tremendous amount of professional effort and investment, we did it.
“For the USACE to summarily reject a CMP that is directly responsive to its requirements, to do it on the basis of what we believe to be largely minor and arbitrary deficiencies and without giving the proponent an opportunity to respond to those alleged deficiencies or otherwise amend its application is, we believe, without precedent in the long history of responsible resource development in Alaska,” said Northern Dynasty CEO Ron Thiessen.
The Pebble Partnership’s CMP was prepared in collaboration with HDR Alaska – the leading aquatic resources consulting firm in Alaska, whose experience spans the preparation of dozens of Clean Water Act-compliant CMPs for oil and gas, mining and other resource and infrastructure development projects in the State.
Northern Dynasty points out that, upon receiving the USACE’s mitigation demands, more than 20 wetland professionals and support staff were mobilised into a fly-in field camp in the Koktuli watershed this summer to map wetlands and waterbodies throughout the 112 445-acre Koktuli watershed conservation area and otherwise generate the technical data required to submit a compliant CMP.
More than 1 000 person-days of field work were spent this summer gathering baseline data and other technical information to meet the USACE’s mitigation requirements. In addition, the Pebble Partnership met with USACE officials to confirm its view that the proposed mitigation area would meet the USACE’s stated requirements for in-watershed and in-kind mitigation.
“We expended considerable financial and professional resources delivering exactly what the US Army Corps asked us to deliver on compensatory mitigation,” Thiessen said.
“I am very confident in saying I believe our CMP is both compliant with the Clean Water Act and fully responsive to the Corps’ demand. So, we were shocked when they found our plan to be non-compliant, and even more so that they didn’t provide any opportunity to respond to alleged deficiencies.”
Thiessen said Northern Dynasty and the Pebble Partnership believe the majority of CMP deficiencies identified by the USACE after a negative ROD for the Pebble Project was announced are minor and arbitrary – including many implementation and documentation steps that are conventionally addressed after federal permits are issued. He noted that many of the USACE’s objections to Pebble’s CMP are contradicted by its acceptance of CMPs submitted for other Alaska-based resource development projects.
Although the Pebble Partnership met with USACE officials with respect to its proposed mitigation plan several times before submitting a final CMP, it claims the lead federal regulator never raised many of the objections that later became the basis for its rejection of the plan.
For instance, the USACE claimed in its rationale for finding Pebble’s CMP ‘non-compliant’ that the proponent failed to compensate for port-site impacts. In fact, the Pebble Partnership’s CMP clearly proposes to mitigate for the port site through inclusion of additional acres in the KCA.
“That the USACE never afforded Pebble an opportunity to respond to these minor gaps or to amend its CMP submission to address them is, in our view, procedurally invalid and incorrect,” Thiessen said.
“It was our belief when we submitted the CMP that we’d met the regulatory requirements under the Clean Water Act and that remains our belief today.”
“Having improperly imposed a more stringent mitigation standard on Pebble than any other development project in the state, we believe the USACE summarily rejected a CMP that demonstrably met the unprecedented high-bar it had set,” Thiessen said. “As I’ve said before, we believe the facts are on our side and we intend to pursue our appeal and other avenues with vigour and determination.”