Corps of Engineers upholds denial of permit for controversial Pebble mine in Alaska

The U.S. Army Corps of Engineers has dismissed an appeal filed by the Pebble Limited Partnership in its effort to obtain a key permit needed to build the controversial Pebble mine.

The decision, released on Monday, lets stand a permit denial issued by the Corps in 2020.

Rejection of the appeal is the latest setback for the would-be developer of the huge copper and gold mine proposed for the land upstream of Southwest Alaska’s salmon-rich Bristol Bay.

The biggest setback came in January 2023, when the federal Environmental Protection Agency invoked a rarely used provision of the Clean Water Act to preclude Pebble or any metals mine like it in key Bristol Bay watersheds. The EPA action, which followed years of study and public hearings, was based on the agency determining that the Pebble mine would have “unacceptable adverse effects” on an ecosystem that supports commercial, sport and subsistence fisheries, as well as wildlife populations.

The Corps, in its 2020 permit denial, came to a similar conclusion as that made by the EPA. It determined that the Pebble project “would cause significant degradation to the Koktuli River Watershed,” an important salmon habitat, and that the project “would also be contrary to the public’s interest.”

In January, the U.S. Supreme Court rejected an attempt by the state to have the nation’s highest court review the EPA action and consider dismissing it. Gov. Mike Dunleavy’s administration and the Pebble Limited Partnership have since started to pursue litigation in lower courts.

The Pebble Limited Partnership in 2021 appealed the Corps’ permit denial, and last year the Corps’ Pacific Ocean Division determined that the appeal raised issues that justified reconsideration at the Alaska district level.

In its decision this week, the Alaska division determined that the EPA action precludes any revival of the permit that had been denied in 2020. The EPA action, taken under a provision of the Clean Water Act known as Section 404(c), supersedes any possible permit action by the Corps.

“Upon review of the applicant’s final 2020 Mine Plan permit application in full consideration of the EPA’s 404(c) determination, I have determined that because the mine site falls within the EPA’s Defined Area of Prohibition and Defined Area of Restriction, the EPA’s determination is a controlling factor that cannot be changed by a USACE decision maker and the application is hereby denied without prejudice,” said the decision signed by Col. Jeffrey Palazzini, commander of the Alaska district.

Northern Dynasty Minerals Ltd., the Canadian company that is the sole owner of the Pebble Limited Partnership, said in a statement that it will continue to pursue the project.

The dismissal “without prejudice” leaves open the possibility that the Corps will issue the needed permit, the company said.

“Our primary focus remains on removing the EPA veto, either through federal government action or through our existing legal proceedings in conjunction with the State of Alaska. Once the veto is cleared, it opens the way for us to re-engage with the USACE,” Ron Thiessen, Northern Dynasty’s chief executive officer, said in the statement.