Northern Dynasty: Pebble Partnership appeal challenges ‘significant degradation’ finding for proposed copper-gold-molybdenum-silver-rhenium mine in southwest Alaska
Northern Dynasty: Pebble Partnership appeal challenges ‘significant degradation’ finding
for proposed copper-gold-molybdenum-silver-rhenium mine in southwest Alaska
February 10, 2021 Vancouver – Northern Dynasty Minerals Ltd. (TSX: NDM; NYSE American: NAK) ("Northern
Dynasty" or the "Company") reports that its recently submitted Request for Appeal (“RFA”) of a federal
permitting decision concerning Alaska’s Pebble Project challenges a key finding of ‘significant degradation’.
Prepared and submitted by the Company’s 100%-owned US-based subsidiary Pebble Limited Partnership (the
“Pebble Partnership”), the RFA argues the US Army Corps of Engineers’ (“USACE”) finding that the proposed
copper-gold-molybdenum-silver-rhenium mine would cause ‘significant degradation’ to a local watershed is:
• inconsistent with the law and Clean Water Act (CWA) regulations;
• arbitrary and unsupported by the administrative record , including the Final Environmental Impact
Statement (“FEIS”) for the Pebble Project; and,
• unprecedented in Alaska and detrimental to the future of resource development in the state.
In response to shareholder enquiries, Northern Dynasty intends to highlight many of the compell ing
arguments within the Pebble Partnership’s 56-page (plus appendices) RFA in the coming weeks. A complete
version of the document can be viewed at: https://northerndynastyminerals.com/site/assets/files/4888/plp-
request-for-appeal-poa-2017-00271-jan-19-2021.pdf.
Following receipt of the Pebble Partnership’s ‘request for appeal’ on January 19, 2021, the USACE has 30 days
to notify the appellant as to whether its RFA is complete. USACE guidelines indicate the administrative appeal
process should conclude within 90 days, although it may be extended under certain circumstances.
Inconsistent with law and CWA regulations
In June 2020, the USACE informed the Pebble Partnership of its ‘significant degradation’ finding, based on its
view the proposed mine would have a ‘more than trivial’ impact on a ‘preponderance’ of factors cited in CWA
regulations for measuring effects on aquatic resources. The determination at Pebble relates to direct and
indirect project effects within the Koktuli watershed.
In its RFA, the Pebble Partnership argues the ‘more than trivial’ standard employed by the USACE is not the
correct test for assessing a project’s impact on aquatic resources or making a ‘significant degradation’ finding.
“USACE guidance instead provides that ‘significant’ means ‘major’ : the Guidelines on Analysis of 404 Permit Applications
provide that each 404(b)(1) fact or should be evaluated on a continuum that includes no effect, negligible, minor, and ‘major
(significant)’ effect. ‘More than trivial’ is not one of the choices, but most closely equates to negligible or minor, while
significant effects are ‘major’ effects at the other end of the spectrum. Defining ‘ significant’ as major, rather than more than
trivial, also fits with common usage: dictionaries define ‘significant’ as ‘having or likely to have a major effect.’
“USACE/EPA guidance on 404(b)(1) Alte rnatives Requirements provides ‘small discharges to construct individual driveways’
an example of an activity that would constitute ‘trivial impacts.’ This underscores that ‘trivial impacts’ are extremely minor or
negligible impacts. Thus, the phrase ‘more than tri vial impacts’ covers the entire continuum between trivial impacts like
discharges from individual driveways and major adverse impacts that could constitute significant degradation. Put simply, the
fact that a project’s impacts are more than trivial does not mean they are significant.
“Indeed, if ‘ more than trivial’ were the standard, almost every project that required an individual 404 permit would trigger a
finding of significant degradation.” (RFA pp. 13 – 14)
Arbitrary and unsupported by the administrative record
In the Record of Decision (“ROD”) issued for the Pebble Project in November 2020 , the USACE provides a
Factual Determination Matrix to explain how it assessed the CWA 404 (b)(1) factors in making the ‘significant
degradation’ finding.
The Pebble Partnership argues in its RFA that the USACE’s Factual Determination Matrix provides little
analysis, and is largely a recitation of speculative impacts that may occur without substantiation. The
Company believes the justification for the agency’s ‘significant degradation’ finding falls well short of th e
regulatory requirement that such determinations be “based upon appropriate factual determinations,
evaluations and tests.”
The Pebble RFA also provides multiple examples of instances in which the USACE’s justification for a
‘significant degradation’ find ing is contradicted by the Pebble FEIS – including on such topics as fish and
fisheries, water quality and recreation.
“In sum, the record does not support a finding of significant degradation in the Koktuli, or any other watershed. The Factual
Determination Matrix shows that the District’s approach was to find that if any impacts are theoretically possible and cannot
be completely mitigated, they are significant, even if the FEIS found otherwise. The District seeks to ignore the findings of its
own FEIS - a document that it developed with input from dozens of scientific experts. This approach fails to meet the regulatory
requirement that findings of s ignificant degradation must be ‘ based upon appropriate factual determinations, evaluations,
and tests.’” (RFA p. 20)
Unprecedented in Alaska
In communicating its ‘significant degradation’ finding to the Pebble Partnership in June 2020, the USACE
acknowledged it was not aware of any similar determination for large development projects in Alaska. The
singular nature of the USACE’s finding provided the impetus for the agency to demand ‘in kind’ and ‘in
watershed’ compensatory mitigation at Pebble at ‘a large ratio ’ – an unprecedented requirement that is
contrary to CWA regulations, USACE guidance and past practice in Alaska.
In its RFA, the Pebble Partnership contrasts the USACE’s approach to ‘significant degradation’ and
‘compensatory mitigation’ at Pebble to multiple, recent large-scale development projects in the state:
“The above examples demonstrate that the District’s consistent approach is to evaluate the 404(b)(1) factors on a continuum
from negligible to significant impacts, and that ‘more than trivial ’ impacts is not the standard used to determine whether
‘significant degradation’ will occur. In addition, the District consistently allows out-of-watershed, out-of-kind mitigation where
in-kind or in-watershed mitigation is not practicable. In fact, PLP could i dentify no examples where the applicant was limited
to in-kind mitigation in a very narrowly defined watershed, or was required to use ratios as high as 6.5 -10:1, as the District
suggested would be necessary for Pebble. The USACE’s consistent approach is a lso to consider all mitigation, including
compensatory mitigation and state -imposed conditions under 401, before concluding whether ‘significant degradation’ will
occur.” (RFA p. 26)
Finally, the Pebble Partnership argues the precedent established by the USACE’s ‘significant degradation’
finding could have long-term negative consequences for resource development in Alaska.
“A finding of significant degradation for Pebble is unprecedented and indefensible. The District’s ‘more than trivial’ test has no
basis in the regulations or USACE precedent. In addition, a finding of significant degradation in the Koktuli watershed is no t
supported by the record. Using a finding of significant degradation based on speculative impacts to impose burdensome
compensatory mitigation sets a dangerous new precedent that could be used against future development throughout Alaska.”
(RFA p. 27).
About Northern Dynasty Minerals Ltd.
Northern Dynasty is a mineral exploration and development company based in Vancouver, Canada. Northern
Dynasty's principal asset, owned through its wholly owned Alaska -based U.S. subsidiary, Pebble Limited
Partnership, is a 100% interest in a contiguous block of 2,402 mineral claims in southwest Alask a, including
the Pebble deposit, located 200 miles from Anchorage and 125 miles from Bristol Bay. The Pebble Partnership
is the proponent of the Pebble Project, an initiative to develop one of the world's most important mineral
resources.
For further details on Northern Dynasty and the Pebble Project, please visit the Company's website at
www.northerndynastyminerals.com or contact Investor services at (604) 684-6365 or within North America
at 1-800-667-2114. Review Canadian public filings at www.sedar.com and US public filings at www.sec.gov.
Ronald W. Thiessen
President & CEO
US Media Contact:
Dan Gagnier
Gagnier Communications
(646) 569-5897
Forward Looking Information and other Cautionary Factors
This release includes certain statements that may be deemed "for ward-looking statements" under applicable law. All statements in
this release, other than statements of historical facts, that address permitting, development and production for the Pebble P roject
are forward-looking statements. These statements include statements regarding (i) the mine plan for the Pebble Project, (ii) the social
integration of the Pebble Project into the Bristol Bay region and benefits for Alaska, (iii) the political and public support for the
permitting process, (iv) the ability to successfully appeal the negative Record of Decision and secure the issuance of a positive Record
of Decision by the US Army Corps of Engineers and the ability of the Pebble Project to secure state permits, (v) the right -sizing and
de-risking of the Pebble Project, (vi) the design and operating parameters for the Pebble Project mine plan, (vii) exploration potential
of the Pebble Project, (viii) future demand for copper and gold, (ix) the potential partnering of the Pebble Project, and (x) the ability
and timetable of NDM to develop the Pebble Project and become a leading copper, gold and molybdenum producer. Although NDM
believes the expectations expressed in these forward -looking statements are based on reasonable assumptions, such statements
should not be in any way be construed as guarantees that the Pebble Project will secure all required government permits, establish
the commercial feasibility of the Pebble Project or develop the Pebble Project. Assumptions used by NDM to develop forward-looking
statements include the assumptions that (i) the Pebble Project will obtain all required environmental and other permits and all land
use and other licenses without undue delay, (ii) studies for the development of the Pebble Project will be positive, (iii) ND M’s
estimates of mineral resources will not change, (iv) NDM will be able to establish the commercial feasibility of the Pebble Project,
and (v) NDM will be able to secure the financing required to develop the Pebble Project. The likelihood of future mining at the Pebble
Project is subject to a large number of risks and will require achievement of a number of technical, economic and legal objec tives,
including (i) obtaining necessary mining and construction permits, licenses and approvals without undue delay, includin g without
delay due to third party opposition or changes in government policies, (ii) finalization of the mine plan for the Pebble Project, (iii) the
completion of feasibility studies demonstrating that any Pebble Project mineral resources that can be econ omically mined, (iv)
completion of all necessary engineering for mining and processing facilities, (v) the inability of NDM to secure a partner fo r the
development of the Pebble Project, and (vi) receipt by NDM of significant additional financing to fund t hese objectives as well as
funding mine construction, which financing may not be available to NDM on acceptable terms or on any terms at all. NDM is als o
subject to the specific risks inherent in the mining business as well as general economic and business conditions, such as the current
uncertainties with regard to COVID-19.
The National Environment Policy Act Environmental Impact Statement process requires a comprehensive “alternatives assessment”
be undertaken to consider a broad range of development alternatives, the final project design and operating parameters for th e
Pebble Project and associated infrastructure may vary significantly from that currently contemplated. As a result, the Company w ill
continue to consider various development options and no final project design has been selected at this time.
For more information on the Company, Investors should review the Company's filings with the United States Securities and Exchange
Commission and its home jurisdiction filings that are available at www.sedar.com