What is the Board of Fish Proposal 13?
Bristol Bay produces more wild sockeye salmon than any other watershed on the planet. It is a world-class fishery supported by pristine productive water and built by thousands of years of salmon returning from the ocean to pass on their genes to another generation of finned athletes. Because the headwaters of Bristol Bay has virtually no development, the pristine water quality and superb salmon habitat has been maintained for thousands of years.
Alaska’s Board of Fisheries (BOF) was established to conserve and develop the fishery resources of the state. This includes creating public policies like setting fishing seasons, bag limits, methods and means for the state’s subsistence, commercial, sport, guided sport, and personal use fisheries. In general, the Board of Fish sets policy and direction for the management of the state’s fishery resources and then the Alaska Department of Fish and Game is responsible for management based on those decisions.
Alaska Board of Fisheries Proposal 13 is a small step in achieving protection for Bristol Bay’s abundant and valuable fisheries. The proposal asks the BOF to make a recommendation, via resolution, to the Alaska State Legislature that higher standards of protection be enacted to ensure the continued health and viability of fish habitat in the headwaters of Bristol Bay, specifically the Nushagak and Kvichak River Drainages. The proposal emphasizes that any additional regulatory protections for fish habitat in these drainages would continue to allow all existing uses of the watershed including subsistence, recreational and commercial fishing, hunting, and trapping under state and federal regulations.
Background
Since statehood, the rivers of the Bristol Bay region have been widely recognized as an important wild salmon stronghold for the State of Alaska. Original land management plans for this region designated “essential” and “special” habitats for fish and wildlife in the Bristol Bay headwaters. During the Hammond administration the watershed was further protected with the creation of the Bristol Bay Fisheries Reserve which outlawed oil and gas development. Unfortunately, the Reserve designation did not address hard rock mining in the watershed, mainly because threats such as the proposed Pebble Mine were not yet on the horizon. In his later years, Hammond commented that he could think of no worse place for such a mine excepting the “middle of his own kitchen.” In the last decade pro-development agenda’s within the Alaska Department of Natural Resources revoked the “special” and “essential” habitat designations for Bristol Bay, putting one of Alaska’s most valuable renewable resource at risk.
Bristol Bay is now vulnerable to industrialization via hard-rock mining. If large-scale mining is allowed Bristol Bay’s currently pristine state would be marred by massive man-made lakes that would store mine waste, roads, pipelines, power lines, and urbanization. State decision makers have a responsibility to Alaskan’s to take action to protect Bristol Bay’s salmon and trout and the Alaskans who depend on the fish and wildlife these rivers support. Alaskan Native people and other residents depend on subsistence foods from the watershed; Alaska’s hard working commercial fishermen provide a critical tax base for local governments in the region; a lucrative sportfishing industry, who’s clients travel from around the world to experience world-class fishing in one of the most intact pieces of wilderness left on the planet, all depend on the clean productive rivers of Bristol Bay.
At the Bristol Bay FinFish meeting, held in Anchorage in Dec 1-8th 2009, the Board of Fisheries will have an opportunity to make a critical step toward permanently protecting the Bristol Bay watershed by passing Proposal 13 and sending a clear message to lawmakers in the Alaska legislature that they have a responsibility today to protect this region and its renewable resources for future generations of Alaskans.
What Proposal 13 will do.
For the 2009 Board of Fisheries meeting a group of Bristol Bay stakeholders have joined together again to implore the Board to act on their mandate of fisheries conservation. The authors of Proposal 13 represent a diverse coalition of subsistence, commercial, and sport fishermen and include:
Leader Creek Fisheries LLC, Norman VanVactor and John Lowrance
Naknek Family Fisheries, Izetta Chambers & Everett Thompson
Alaska Sportsman’s Lodge & Alaska Sportsman’s Bear Trail Lodge, Brian Kraft
Curyung Tribal Council, Chief Tom Tilden
Proposal 13 seeks to protect the interests of all existing users, businesses, and residents of the Bristol Bay watershed by ensuring that the fisheries and the habitat that supports Bristol Bay’s legendary salmon runs are not compromised by future development.
What Proposal 13 will NOT do.
Passage of Proposal 13 will not affect access to land, waters, or sustainable uses of the rich renewable resources in the watershed. All the current activities happening in the region would be able to be continued.
Alaska lawmakers have every right to protect its resources; it’s commercial fishing industry, the marketing image of its seafood, and the cultural heritage of its first peoples.
Increased standards of protection in Bristol Bay will not take any rights of the mining industry. Mining interests and mining claims entail one right to the claim holders - to be first in line in an application process for mine permitting should the applicant seek to develop a mine. The state has made no promises to any potential mine developers in the region. In fact, the Alaska constitution enacts that the state will manage state lands in the best interest of Alaskan’s and protect the interests of fish and wildlife.
You can help pass Proposal 13.
A resolution from the Board of Fisheries will send a clear message to law makers that they can no longer stand back, they need to take action to protect the valuable Bristol Bay watershed. Bristol Bay is unique and irreplaceable; the standards of protection should be higher and more stringent than for other areas. There is too much at risk, to many livelihoods at stake, there is an urgent need to protect the renewable resources of Bristol Bay.
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A RESOLUTION OF THE ALASKA BOARD OF FISHERIES Supporting Legislative Action To Augment Protection Of Fish Habitat in the Kvichak and Nushagak River Drainages
WHEREAS, The Kvichak and Nushagak River drainages of the Bristol Bay region are among the most productive wild salmon watersheds in North America and sustain the largest wild sockeye salmon runs in the world, as well as world-class trout fishing; and
WHEREAS, The existing mainstays of the economy in this region – subsistence use, commercial fishing, and sport fishing and hunting – are highly dependent on these productive watersheds; and
WHEREAS, The important fishery resources within these watersheds could suffer negative environmental consequences from potential large scale sulfide mine development, including effects on fish habitat, acid mine drainage, and other water quality issues resulting from mine tailings and exposed rock, that may require ongoing remediation efforts for an indefinite period of time; and
WHEREAS, The Board of Fisheries’ Policy for the Management of Sustainable Salmon Fisheries states that “in the aggregate, Alaska's salmon fisheries are healthy and sustainable largely because of abundant pristine habitat and the application of sound, precautionary, conservation management practices" (5 AAC 39.222(a)(1)); and
WHEREAS, The Policy for the Management of Sustainable Salmon Fisheries states that in the management of salmon fisheries: “all essential salmon habitat in marine, estuarine, and freshwater ecosystems and access of salmon to these habitats should be protected”; that “salmon habitat in fresh water should be protected on a watershed basis, including appropriate management of riparian zones, water quality, and water quantity”; that "salmon habitats should not be perturbed beyond natural boundaries of variation" (5 AAC 39.222(c)); and
WHEREAS, The highly productive fishery resources within these watersheds merit more than the standard level of protection that is now provided under State law and regulation; and
WHEREAS, The Alaska Board of Fisheries is aware of legislation introduced in the 2007-2008 Alaska State Legislative session to create the Jay Hammond State Game Refuge (SB 67) under Title 16 of the Alaska Statues (wherein “game refuge” is inclusive of “fish” and “fish habitat”) which encompassed the Nushagak and Kvichak River drainages; and
WHEREAS, Following board deliberations at their March 9-13, 2007 board meeting, the Alaska Board of Fish “found that the current habitat protections for Bristol Bay fishery resources are not sufficient and acted to continue its Bristol Bay habitat committee”1; and
WHEREAS, At their March 9-13, 2007 board meeting, the Alaska Board of Fisheries voted to not take action on the 2006 Bristol Bay Finfish Proposal #1212 which proposed to create a fish refuge within these watersheds because of its redundancy with pending legislation3 to create the Jay Hammond State Game Refuge (SB 67); and
WHEREAS, The Board of Fisheries has authority under AS 16.05.251(a)(1) to offer recommendations to the Alaska State Legislature regarding the establishment of a fish refuge; and
NOW THEREFORE BE IT RESOLVED That the Alaska Board of Fisheries recommends to the Alaska State Legislature that additional regulatory protections be enacted as needed to ensure the continued health and viability of fish habitat in the Nushagak and Kvichak River Drainages.
BE IT FURTHER RESOLVED That the Alaska Board of Fish recommends to the Alaska State Legislature that any additional regulatory protections for fish habitat in these drainages would allow subsistence, recreational and commercial fishing, hunting, and trapping under state and federal regulations.
1 See: “Preliminary Summary of Actions Alaska Board of Fisheries Statewide Finfish and Supplemental Issues March 9 - 13, 2007 Anchorage” available at: http://www.boards.adfg.state.
2 Proposal available at: http://www.boards.adfg.state.
3 See: “Preliminary Summary of Actions Alaska Board of Fisheries Statewide Finfish and Supplemental Issues March 9 - 13, 2007 Anchorage” available at: http://www.boards.adfg.state.
ISSUE: The watersheds of the Bristol Bay region support some of the most productive wild salmon ecosystems in North America and sustain the largest wild sockeye salmon fishery in the world. The existing mainstays of the economy in this region - subsistence use, commercial fishing, and wilderness sport fishing and hunting– are also dependent on these productive watersheds. The Board of Fisheries’ Policy for the Management of Sustainable Salmon Fisheries states that “in the aggregate, Alaska's salmon fisheries are healthy and sustainable largely because of abundant pristine habitat and the application of sound, precautionary, conservation management practices" (5 AAC 39.222(a)(1)). But some salmon habitat in the Nushagak and Kvichak River watersheds of the Bristol Bay region faces potential major, environmental impacts from one or more large-scale metallic sulfide mines for copper and gold which are being considered in theses watersheds that support these fisheries. Large-scale sulfide mining poses risks to fish and fish habitat especially from acid mine drainage, a process that dissolves metals and renders them toxic to fish and other wildlife. Acid mine drainage and other water quality issues resulting from mine tailings and exposed rock may require ongoing remediation action and monitoring in perpetuity. There is considerable uncertainty about whether state policy "to effectively assure sustained yield and habitat protection for wild salmon stocks" 5 AAC 39.222(a)) and that "salmon habitats should not be perturbed beyond natural boundaries of variation" 5 AAC 39.222(c) can be upheld in light of the scale of development being considered.
WHAT WILL HAPPEN IF NOTHING IS DONE? If additional regulatory protections are not provided for the fish habitat within the Nushagak and Kvichak River, there is considerable risk of fish habitat loss and reduced sustained yield of wild salmon and resident fish stocks.
WILL THE QUALITY OF THE RESOURCE HARVESTED OR PRODUCTS PRODUCED BE IMPROVED? N/A
WHO IS LIKELY TO BENEFIT? This proposal requests that the Board pass a resolution supporting legislative action to augment protection of fish habitat in the Kvichak and Nushagak River Drainages. Depending on action taken by the legislature this could result in a greater level of protection, all those who fish, hunt, trap or otherwise use fish and wildlife from the Kvichak and Nushagak watersheds, as well as those who provide services to such users, will have greater assurance that the fish and wildlife stocks will be available in future years.
WHO IS LIKELY TO SUFFER? Action resulting from this proposal is not intended to impinge in any way on subsistence, recreational and commercial fishing, hunting, and trapping allowed under state and federal regulations. It is not anticipated that users of fish or wildlife from the Kvichak or Nushagak watersheds will suffer or be faced with any displacement of their usual practices. Operators of large-scale non-renewable resource extraction projects may have to modify their operations if they result in environmental effects on fish habitat that are not compatible with protections enacted by the Legislature.
OTHER SOLUTIONS CONSIDERED? We considered requesting the Alaska Board of Fisheries to establish a fish refuge, subject to approval by the Alaska State Legislature, per their authority under AS 16.05.251(a)(1). However, we feel that the Alaska State Legislature is the most appropriate institution to take the lead in establishing a refuge as one potential means of extending additional protections to the fish habitat within these watersheds.
PROPOSED BY: Leader Creek Fisheries LLC, Norman VanVactor and John Lowrance; Naknek Family Fisheries, Izetta Chambers; Alaska Sportsman’s Lodge and Alaska Sportsman’s Bear Trail Lodge, Brian Kraft; and Curyung Tribal Council, Chief Tom Tilden (HQ-09F-155)
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BOF Proposal 13 FACTS:
Q The Board of Fish deals with allocation issues, isn’t this proposal asking the BOF to go beyond its realm of authority?
A: According to Alaska Statutes (AS 16.05.221), the purpose of The Board of Fisheries is “the conservation and development of the fishery resources of the state.” Conservation is defined as “controlled utilization of a resource to prevent its exploitation, destruction, or neglect.”
On occasion the Board makes recommendations to the legislature and governor involving setting policy and regulation, for example, after the last Bristol Bay Board meeting the Board sent a letter to the governor recommending that the habitat division be moved from DNR back to the Alaska department of Fish and Game. Therefore, there is president and a recommendation to the legislature to protect the resource that the BOF is charged with conserving, falls fully into the Board’s mandate, and responsibility.
Q Will increasing the standards of protection for fish in Bristol Bay affect hunters, subsistence users, sport, and commercial fishermen already operating in the region?
A Proposal 13 is not asking for a change in management of these user groups. The exact language of the proposal states; Be it resolved that the Alaska Board of Fish recommends to the Alaska State Legislature that any additional regulatory protections for fish habitat in these drainages would allow subsistence, recreational and commercial fishing, hunting, and trapping under state and federal regulations.
Q Isn’t Proposal 13 simply an attempt to use the Board of Fish as a surrogate to block the Pebble Project?
A Proposal 13 is not about Pebble. The Board of Fish is asking the legislature to enact protections for the sensitive fish habitat at the top of the Bristol Bay watershed to protect the existing fisheries resource as much as possible from the impacts of development in the watershed.
Q Do we need another layer of bureaucracy surrounding the management of Bristol Bay? Isn’t that what the Bristol Bay Area Plan was created to do?
A The 2005 version of the BBAP is currently under legal challenge. If it is determined that the Area Plan needs to be re-worked, it would be beneficial to have a BOF decision on record requesting full protection for the salmon resources. And more importantly, Proposal 13 is not creating anything, just sending a request to the legislature that they build upon the existing Bristol Bay Fisheries Reserve to adequately protect the sensitive fish habitat at the top of the Bristol Bay watershed.
Q Isn’t there an issue of takings to consider? If the state enacts additional regulation that affects the economic viability of developing existing mining claims, would the State would be liable for compensation to the mine claim holder?
A Alaska lawmakers have every right to protect its resources; it’s commercial fishing industry, the marketing image of its seafood, and the cultural heritage of its first peoples. An increased standard of protection in Bristol Bay is not a taking of any rights of the mining industry. Mining interests, and mining claims entail one right to the claim holders, to be first in line in an application process for mine permitting should the applicant seek to develop a mine. The state has made no promises to any potential mine developers in the region. In fact, it is written into the states constitution that they will manage state lands in the best interest of Alaskan’s and protect the interests of fish and wildlife.
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Alaska’s Fisheries Board Should Stand Up For Bristol Bay Before It’s Too Late As businessmen and women of Bristol Bay, we are concerned about the future of our region and need the public to help us protect our economy and livelihoods, which depend on Bristol Bay’s vast seafood resources. You can do this by supporting Proposal 13 before the Alaska Board of Fisheries. Plans are currently being developed to turn the Bristol Bay watershed into a hard-rock mining district. At least one large-scale metallic sulfide mine is already envisioned for the Nushagak and Kvichak River drainages, home to the most productive sockeye salmon and rainbow trout runs in North America. Sulfide mines produce acid mine drainage, which is toxic to fish. When the Alaska Board of Fisheries meets in Anchorage in early December, we will ask the panel to pass Proposal 13. This proposal recommends that the Alaska Legislature adopt higher standards of protection for the Nushagak and Kvichak drainages so that the pristine and highly productive habitat of the region remains intact for future generations. The Bristol Bay headwaters have long been recognized as an important wild salmon stronghold. The watershed produces more wild sockeye salmon than any other place on earth. What makes Bristol Bay different than other salmon systems? The extraordinary abundance and stability stems from genetic diversity of a watershed that has virtually no development in the headwaters. Original plans for this region designated “essential” and “special” habitats for fish and wildlife in the Bristol Bay headwaters. When former Gov. Jay Hammond served in the state Senate, he successfully championed legislation that outlawed oil and gas development in the Bristol Bay watershed without special legislative approval. The legislature needs to ensure that any oil and gas development will not harm fish prior to approving leases. The Hammond bill brought important protection to Bristol Bay but it left out an important piece – safeguards against the potentially devastating effects of hard-rock mining. Bristol Bay is now vulnerable to the threat of intense industrialization via hard-rock mining, massive toxic tailings storage lakes, roads, pipelines, power lines, and urbanization. State decision-makers have a responsibility to take action to protect the region’s first peoples who depend on subsistence foods from the watershed, Alaska’s commercial fishermen who provide a critical tax base for local governments, and a lucrative sport-fishing industry which draws clients from around the world to experience world-class fishing in one of the most intact pieces of wilderness left on the planet. Proposal 13 seeks to protect the interests of all users, businesses, governments, and residents of the Bristol Bay watershed by ensuring that the habitat that spawns the Bay’s legendary salmon runs is not compromised by future development. It is not a lock up. It will not affect access to land, waters, or sustainable uses of the rich renewable resources in the watershed. Alaska lawmakers have every right to protect state resources; the commercial fishing industry, the marketing image of its seafood, and the cultural heritage of its first peoples. Passage of a resolution from the Board of Fisheries will send a clear message to lawmakers that they can no longer stand back, wait and see, and let the permitting process run its course. Bristol Bay is unique and irreplaceable. There is too much at risk, to many livelihoods at stake, than to simply rely on status quo permitting process that is biased towards development and designed for other state lands with less water, less fish, less wildlife, and less at stake than the Bristol Bay headwaters. Please join with us and let your voice be heard on Proposal 13. Send a clear message to Alaska decision-makers that the Bristol Bay watershed is too important to risk. To read Proposal 13, go to http://www.boards.adfg.state. Thank you for supporting Bristol Bay, Everett Thompson & Izetta Chambers, Naknek Family Fisheries Brian Kraft, Alaska Sportsman’s Lodge & Alaska Sportsman’s Bear Trail Lodge Chief Tom Tilden, Curyung Tribal Council Norman VanVactor and John Lowrance, Leader Creek Fisheries Testimony and comments are due by Nov. 17th to the Board if fish. Comments may be mailed or faxed to the following location: ALASKA DEPARTMENT OF FISH AND GAME
Boards Support Section
P.O. Box 115526
Juneau, AK 99811-5526
(907) 465-4110
(907) 465-6094 FAX TAG LINE: The authors are sponsors of Board of Fish Proposal 13 and represent the diverse fisheries stakeholders of Bristol Bay: commercial fishing, subsistence users, and sportsmen.
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Bristol Bay Watershed in the Face of Large Scale Mining:
Do Alaska’s Statutory Standards Adequately Protect Fish, Game and Their Habitats?
Many state statutes are out-of-date for purposes of protecting Bristol Bays fisheries in the face of large scale metallic sulfide mining. Most were enacted when no one could envision the scale and risks that contemporary open pit and block caving mining, and chemical treatment of massive, low-grade, metallic sulfide ores, pose today to the Bristol Bay watershed. Because of its scale and location at the headwaters of two of the most productive salmon systems in the world, Pebble Mine has brought these risks into public view and requires the state to consider better protection of fish game and their habitats.
| Department of Natural Resources,
Statutes & Application |
Current
Statutory Standard |
Problems Current Standards Create When Applied to Development of
Metallic Sulfide Mines |
| AS 27.05.010 – Establishes DNR as “lead agency” on mining. DNR “shall coordinate all regulatory matters” concerning mining. | The statute articulates no standards and only articulates duties. | |
| AS 38.04.005 --DNR’s overall policy statute. 1 | Establishes DNR’s overall policy of managing for “maximum use of state land consistent with the public interest.” | “Maximum use of state land consistent with the public interest” is a vague and subjective standard, establishing wide discretion for permitting decisions made by DNR. Vague standards, overseen by DNR, militate against conservation of fish, game and uses dependent on them. |
| AS 38.05.035(e) –Applies to leases and disposals of public land, mineral and water rights, etc. | Lease or disposal depends on DNR’s determination of the “interests of the state will be best served.” | This “best interest” standard is vague and subjective. |
| AS 38.05.255(a) –Applies to leases for millsites, tailings disposal, mine facilities and other surface uses of state land or water within a mining property. | Leases and surface uses within a mining property are limited to those “necessary” for prospecting, extraction, and processing of minerals and shall be “subject to reasonable concurrent uses.” | 1. What is “necessary” for prospecting, extraction, processing is vague and subjective with respect to some uses. For example, how DNR decides whether or not housing, sewerage treatment, etc. for 2000 workers is “necessary” on state land when alternatives exist on non-state land is entirely subjective. Yet this type of permitting decision could have serious regional impacts on fish, game, and uses dependent on them.
2. “Subject to reasonable concurrent use” is vague as to whether it includes production of fish and game. |
| AS 38.05.850 -- Applies to permits, rights of way, or easements on state land for roads, ditches, pipelines not subject to AS 38.05, electric transmission and distribution lines, and similar uses or improvements. | DNR’s Director of Division of Mining, Land, and Water “shall give preference to that use of the land that will be of greatest economic benefit to the state and the development of its resources.” | 1. The preference for land use that gives “greatest economic benefit to the state and development of its resources” is vague and subjective. Does “the state” refer to the state treasury, the state and its economy, or the citizens of Alaska? |
| AS 46.15.080 (Water Use Act) – Applies to authorizations to appropriate state owned waters. |
Appropriation must be “in the public interest.” In determining that interest, DNR shall “consider” 8 factors: (1) benefit to the applicant, (2) effect of economic activity resulting from the appropriation; (3) effect on fish, game and public recreation; (4) effect on public health; (cont.)
(5) effect of loss of alternate uses of water; (6) harm to other persons; (7) intent and ability of the applicant to complete the appropriation; and (8) effect upon access to navigable or public water. |
1. The “public interest” standard is vague and subjective. There are no legal standards to determining “public interest.” DNR simply evaluates information provided by applicant.
2. The requirement that DNR “consider” eight factors is merely procedural. It is far short of substantive standard that would require DNR to avoid (or even to minimize or mitigate) the harms or risks that can occur. Moreover, “considering” the effects on fish is far short of a statutory standard that articulates acceptable or unacceptable harm to fish. Because DNR generally lacks criminal citation authority, it cannot enforce a cease and desist order with criminal authority. |
| AS 46.17.010 – Applies to permits authorizing construction of dams, such as for tailings impoundments. | Dams must be designed, constructed, operated and maintained “consistent with the protection of life and property.” | The standard “consistent with the protection of life and property” ignores fish, game, habitat, and uses of them. |
| AS 46.40 (Alaska Coastal Management Program, ACMP) –
Applies to agency decisions on a proposed project located in the coastal zone, as identified by state or district coastal management plans. ACMP is implemented and coordinated by DNR. |
Requires that agency decisions on a proposed project be “consistent” with statewide coastal zone standards adopted under AS46.40.040 and the enforceable policies in an applicable district coastal management. | 1. “Consistency” depends on the quality of statewide ACMP standards for protecting fish, game, and uses of them, and on enforceable policies of district plans. The Murkowski Administration diluted many statewide standards and enforceable policies.
2. DNR implementation is the result of Gov. Murkowski’s transfer of the Program from the Governor’s Office, where ADF&G and DNR were peer agencies, to DNR. Vesting sole responsibility in DNR is contrary to decisions made by legislature at Statehood to establish separate, peer agencies for fish and game (ADF&G) and resource development (DNR). |
This table demonstrates that all statutory standards, that are applicable to the proposed Pebble project and administered by DNR, and are vague and open to wide interpretation. Only one (AS 46.15.080) mentions fish, game, and recreation (but not commercial or subsistence use), and that statute only requires DNR to “consider” fish, game and recreation, rather than to protect them.
DEC Standards: An Example of Shortcomings of Water Quality Standards
At current copper standards, salmon can lose their ability to navigate to spawning grounds. Adverse impacts to the salmonid food chain can occur below DEC’s criterion for copper for aquatic life in Alaska (9 μg Cu/L), and lethal levels are well below the human drinking water standard, which in Alaska is 1,300 μg Cu/L. (Carol Ann Woody, PhD, Copper: Effects on Freshwater Foodchains and Salmon – A Review September 21, 2007). Similar research to that which Dr. Woody has conducted on copper standards needs to be conducted for zinc, selenium, cadmium and lead for the purposes of evaluating potential effects to fish populations under current water quality standards.
A problem facing the Alaska Legislature in setting statutory standards for DEC regulations is that the science is still developing on synergistic effects – e.g., copper in combination with zinc at a host of variable such as temperature, pH, life stage of the fish, etc. Id. at 6, 14-15. When the science is uncertain and developing, a rigid effluent standard is ineffective, and a better standard might be the “precautionary approach” taken by the Alaska Board of Fisheries in its Sustainable Salmon Management Policy, 5 AAC 39.222, as a means of addressing uncertainties in science as inevitably occur. The “precautionary approach,” used in the Sustainable Salmon Policy, basically means that when the science is unclear or still developing, the Board errs on the side of conservation.
Federal Standards: Theory of “check and balances” is not enough.
National Environmental Policy Act, 42 U.S.C. §4321 et. seq.
The National Environmental Policy Act (NEPA) integrates all federal, state and local permitting processes, but NEPA is a procedural rather than substantive statute. It is triggered by any major federal action, such a permitting, that significantly affects the quality of the environment. It requires a “hard look” at the issues, to assist federal decision-making, but does not require that any decision actually protect the environment. The most well known vehicle for doing so is the “environmental impact statement,” which will be almost certainly required for the proposed Pebble project should it move forward.
Clean Water Act, 33 U.S.C. § 1251 et. seq.
- NPDES – unclear application to groundwater.
Case law under the Clean Water Act is divided on whether the Act applies to groundwater. Hence, any National Pollutant Discharge Elimination System (NPDES) permit may not touch upon or be enforceable with respect to acid mine drainage occurring from some sources, such as tailings facilities, waste rock, mine walls, or metallic sulfide dust generated by Pebble (or any other mining development) and that pollute groundwater. The net result is that the Clean Water Act is not equipped to deal well with groundwater issues.
2. Corps of Engineers Wetlands Permits.
Pebble and associated facilities will impact many wetlands and require dredge and fill permits from the US Army Corps of Engineers section 404 of the Clean Water Act, 33 U.S.C. § 1344. Wetland permits will not address the much boarder set of Pebble-related issues.
*** Consult with Alaska Department of Fish & Game biologists is required for all Army Corps and NPDES federal permits when a system is listed in the Andramous Fish Catalog. The state currently estimates less that 50% of anadramous streams are documented, which means permits for fish bearing waters may not receive comment from the Department of Fish & Game. How the agency interprets ADF & G comment on possible impacts to fish, game and habitat is not governed by specific statute or standards.