Army Corps had no choice but to reject Pebble mitigation plan prepared with Dunleavy support

The Army Corps of Engineers had no choice but to reject the “compensatory mitigation” plan the promoters of the Pebble Mine submitted to the federal government.

The reason is simple: The Pebble promoters didn’t offer any compensatory mitigation.

The entire plan was founded on an unofficial agreement with Gov. Mike Dunleavy that had been withheld from the public, with state officials lying about collaborating with the mine promoters.

The Dunleavy-Pebble plan, revealed in this document made public Nov. 25, was to have the state promise to preserve 112,445 acres of state land near the mine site for at least 99 years.

On the Pebble Tapes, former Pebble boss Tom Collier first revealed that he and Dunleavy had agreed on a plan to have the state preserve land and that they were working out in the details with the Department of Natural Resources.

The Corps said the Pebble promoters did not produce any legal documents as justification and that the law requires preservation in perpetuity, not deed restrictions that would expire in 99 years.

Let’s start with the definition. Compensatory mitigation is a regulatory concept under which the developers of a project take action to offset the unavoidable loss of aquatic resources.

Congress gave the Corps the authority for a mitigation rule under the 2004 federal military authorization act and it was adopted in 2008.

“Compensatory mitigation is the restoration, establishment, enhancement, or preservation of aquatic resources for the purpose of offsetting losses of aquatic resources resulting from activities authorized by Corps of Engineers’ permits,” the agency says in a brochure on the policy.

In late summer, the Corps said Pebble needed to offset damage to 3,300 acres of wetlands and 185 miles of streams in the Koktuli River watershed as part of its compensatory mitigation.

In its plan, Pebble suggested that by some undefined process, the Dunleavy administration would agree to give control of the 112,445 acres to Pebble.

Then, Pebble would agree to set aside the 112,445 acres for at least 99 years with a deed restriction.

“A deed restriction will be recorded in the appropriate recording district to limit uses in accordance with the (compensatory mitigation plan) CMP. The deed restriction will be effectuated through a Declaration of Conservation Covenant and Restriction (Declaration), which constitutes the relevant Site Protection Instrument. The declaration will be finalized and recorded prior to project construction and will remain in effect for at least 99 years,” Pebble said.

The Corps noted the absence of a written promise from the state. “A site protection instrument was not provided; therefore, could not be evaluated,” the Corps said.

The Dunleavy administration will claim that it had no secret legal agreement with Pebble in writing. But it clearly had a political agreement to do what was necessary to preserve the 112,445 acres for at least 99 years to improve the Pebble project’s chances with the Corps of Engineers.

It is debatable whether it would be appropriate for the state to officially “preserve” the 112,445 acres near the Pebble site for at least 99 years. But the Dunleavy administration should not have kept this secret and lied about it to Alaskans.

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