Mining and Water – Water Policy Consulting LLC

Governor Dunleavy Nominations Graphite Creek Project to Fast-41 Permitting

Hot Springs Creek Below the Proposed Graphite One Mine Site

Due to Alaska Governor Mike Dunleavy’s nomination of Graphite Creek project in the remote Kigluaik range north of Nome, as a high-priority infrastructure project, as eligible for new legislation intended to fast track the permitting process for transportation projects. Title 41 of the Fixing America’s Surface Transportation Act, (Fast-41) adopted by Congress during the Obama administration which was intended to be a surface transportation reauthorization focusing on highway, transit, and rail programs. The Act establishes a new Federal Permitting Improvement Steering Council (FPISC), authorized to stream line the NEPA process including elimination of public review and comment. Due to the unprecedented authority provided to the Council, until now, the Act has traditionally been applied only to Infrastructure and transportation Projects.

However, mining companies and the Trump administration have been pressuring FPISC to include mining as a sector under the Act. According to the mining industry magazine Critical Minerals Alaska 2020, “a federal entity meant to provide a one-stop-shop capable of coordinating permits across different federal agencies, thereby streamlining and shortening the overall process for large infrastructure projects that are eligible for the program. Mining projects that supply the materials needed for the energy, communication, and transportation infrastructure in the U.S. may be eligible for Fast-41.” [1] If the proposed Graphite One Mine is included into Fast-41, Critical Minerals Alaska 2020 says it “could help reduce the seven to 10 years it takes the average large mining project in the U.S. to get through the permitting process.”[2]

The sudden surge in the mining of graphite and other precious minerals in Alaska results from a dramatic increase in demand for batteries, solar power, computers, and other high-tech products that require such minerals. For instance, graphite is a significant component of the lithium-ion batteries used for electric cars and some renewable energy systems. According to the World Bank , due to the growing global interest in such cars and energy, the demand for graphite, lithium, cobalt, and other battery metals could increase by nearly 500 percent by 2050.[1] The report says that, “[g]raphite demand increases in both absolute and percentage terms since graphite is needed to build the anodes found in the most commonly deployed automotive, grid, and decentralized batteries. ” Similarly, according the United States Geological Survey, there are currently no graphite mines in the United States, requiring American battery and other manufacturers to import 58,000 metric tons of graphite during 2019.[2] According to CMA2020, with “5.7 million metric tons of quality graphite outlined so far, Graphite One Inc.’s Graphite Creek deposit in Northwest Alaska could provide a reliable domestic supply of graphite to North America’s burgeoning lithium-ion battery sector.” [3]

[1] Shane Lasley, High priority Alaska REE, graphite projects Gov nominations elevate mine projects to Fast-41 permitting, p. 6-7, High priority Alaska 2020 (November 2, 2020).

[2] Ibid.

[3] Shane Lasley, Western Alaska deposit could feed graphite into supply chain, Mining News, CRITICAL MINERALS ALASKA, pp. 28-29 (2020)

Public Lands Management Under Trump Descends into Chaoss

President Donald Trump’s appointment of William Perry Pendley as Director of the Bureau of Land Management who is openly hostile to environmental regulations, has turned into yet another legal debacle typical of the current administration. Pendley’s inflammatory statements and open opposition to social justice and diversity including for native and African American communities, statements that public lands should be privatized, conflicts of interest, unethical conduct, support of anti-government extremists and efforts to dismantle the BLM, have outraged conservation and tribal organizations throughout the western U.S. It, therefore, quickly became obvious to Interior Secretary David Bernhardt that because of Pendley’s record, there would be no way he would obtain confirmation from congress if the administration did what was legally required and nominate him for that purpose. In fact, in a procedure that the U.S. Supreme Court calls a “critical structural safeguard” of democracy, the Appointments Clause of the Constitution requires that the heads of prominent federal agencies be nominated by the President and confirmed by the Senate” a standard that is also found in the federal Vacancies Reform Act.

Especially when it comes to dismantling environmental regulatory standards, however, the Trump administration has never been that concerned with federal law or, for that matter the U.S. Constitution and Bernhardt resolved the issue of Pendley’s radical anti-public land views, racism and support of extremists simply by repeatedly extending Pendley’s appointment as Director of the agency for the past 13 months.

As a result, in July 2020, the state of Montana and several conservation organizations filed a lawsuit to enjoin Bernhardt from continuing to extend Pendley’s status as Acting Director of BLM. This prompted Trump to finally put Pendley’s name before congress as required only to almost immediately remove it because of concerns of several republican senators in key states who are up for election about the audacity of the appointment. However, rather than remove Pendley as acting Director in accordance with with the law, Secretary Bernhardt announced that Pendley will “stay on leading BLM” as the bureau’s deputy director of policy and programs, who is also “exercising the authority of director.”

This, once again, got the attention of the Montana U.S. District Court which as part of the lawsuit filed by the state and conservationists a couple months before, promptly enjoined Pendley from exercising such authority and Bernhardt from unlawfully delegating the authority of the BLM director to him. In fact, the Court’s declaration that Pendley served unlawfully as the Acting Director of the BLM for well over a year, also meant that many of the decisions he made during that time were similarly illegal, threatening Trump’s strategy to dismantle protections of public lands and open them up to development.

Chief Judge Brian Morris found that “’any function or duty’ of the BLM Director that has been performed by Pendley would have no force and effect and must be set aside as arbitrary and capricious” and instructed DOI to compile any such acts and provide a full report to the Court. Therefore, any of the official actions Pendley took over the 424 preceding the decision including opening up the Arctic National Wildlife Refuge or the National Petroleum reserve to oil drilling,” or vast acreages of public lands, including areas relied on by Native village communities for subsistence, to mining, are potentially unauthorized.

Trump Would Like You to Think He’s Gone Environmental

Just weeks away from the Presidential election, Trump is pandering for votes by suggesting that he is our man when it comes to preserving the environment. Describing himself as “the number one environmental president since Teddy Roosevelt,” in recent weeks he has backtracked on his administration’s move to grant a permit for Pebble Mine in Alaska which has to potential to devastate Bristol Bay salmon runs, and extended a federal moratorium on offshore drilling in the Gulf of Mexico which is largely supported by residents of Florida, Georgia and South Carolina where he is trying to solidify his base. Moreover, he rescinded his nomination of William Perry Pendley, the controversial candidate chosen to run the Bureau of Land Management. This smokescreen does little to obscure the dozens of deregulatory actions undertaken by the Trump administration, including rolling back fuel economy standards, opening the Arctic National Wildlife Refuge coastal plains to oil leasing, and tougher air-quality standards to name but a few.

EPA Should Veto Pebble Permit

In 2017, the US Army Corps of Engineers released the Draft Environmental Impact Statement (DEIS) to develop the world’s largest copper mine in the Bristol Bay watershed, located in the sensitive headwaters of Bristol Bay in Southwestern Alaska. The Mine which is proposed by the foreign-based Pebble Limited Partnership would destroy several miles of streams which are critical the largest sockeye salmon fishery in the world and upon which twenty-five federally recognized tribal governments depend for subsistence. In compliance with the National Environmental Policy Act, the Corp was chartered with drafting the EIS to analyze in detail, the environmental impacts of proposed projects.

Next to the Project Chariot when, in the 1950s, the United States Atomic Energy Commission proposed to detonate an atomic bomb off the coast of the Chukchi Sea in order to create harbor there, the Pebble Mine could be the most contentious industrial development activity ever proposed in Alaska. Due to its potential impact on water and salmon resources, it risks the economic and cultural lifeblood of the region. As a result, the mine is opposed not only by 80 percent of Bristol Bay’s residents but also by a broad spectrum of entities that include commercial fishermen, businesses, sportsmen, and conservation groups.

Yet, despite the fact that public citizens, commercial interests, tribes, conservation organizations, and even an international mining corporation oppose this environmentally and economically disastrous Mine, the Corps under the Trump Administration, established a flawed NEPA analysis in its rush to permit it. As a result, the Pebble Mine has been referred to by the conservation community as “quite simply one of the most reckless Projects anywhere in the world today.” Last year, when opening the Oversight Committee hearings regarding the mine, Congressman Peter DeFazio, Chairman of the House Transportation and Infrastructure Committee, called it “an abomination” and stated that “the Pebble Mine proposal is a bad idea made even worse by the sham review process currently underway.”

Under the current proposal and future development plans, the mine would be so destructive to the environment and the Alaska economy that there has been a consistent pattern of major investors walking away from the project once they understand the overwhelming opposition and unavoidable environmental and economic risks. The fourth major firm to abandon the project since 2011, First Quantum Minerals Ltd., which had provided $37.5 million upfront and pledged $150 million over the following three years to fund the permitting process in exchange for a 50 percent share, pulled out in late May of 2018.

When the Final EIS for the project was released last month, a string of politicians, and other public figures came out in opposition to Pebble. For the first time cracks in the Trump Administration’s relentless anti-environmental regulatory strategy arose when Donald Trump, Jr. tweeted “As a sportsman who has spent plenty of time in the area I agree [that] the headwaters of Bristol Bay and surrounding fishery are too unique and fragile to take any chances with…Pebble Mine.” Similarly, long time extraction industry supporter, Alaska Senator Dan Sullivan, who after reviewing the Final EIS stated:

“… I am increasingly concerned that the final EIS may not adequately address the issues identified in the draft EIS regarding the full risks of the project as proposed to the Bristol Bay watershed and fishery… These processes should also not be rushed or fast-tracked, especially given the size and complexity of this particular project.”

While Sen. Sullivan, however, has expressed concern for the obviously flawed EIS process, so far, he is not off the fence yet as indicated by his statement that “While it is a major step in the permitting process, it must be emphasized that the Final EIS is not a decision document. The final EIS for the Pebble Mine is the first step in a long, demanding permitting process….”

In 30 years of working in the area of environmental law and policy, however, unless stopped by a lawsuit or legislation, I can’t remember a single project that was not given the go-ahead after it was recommended in a Final EIS.

When the FEIS was released on July 24, there are now, less than a couple of weeks remaining before the final decision on the permit and for the Environmental Protection Agency to veto the project. Dan Sullivan and other politicians need to take a firm stand and pressure the agency to do just that.

WPC Developing Panel on Impacts of Rising Stream Temperatures and Development at American Water Resources Association Annual Meeting

Salmon Die-Off Tubutulik River in Western Region, Alaska

WPC is convening a session topic entitled “The Impacts of Mining and Climate Change on Rising Stream Temperatures in Alaska” for the American Water Resources Association’s Annual Meeting taking place in Orlando, Florida from November 3-6.

In the summer of 2019, due to dramatic temperatures increases, thousands of salmon died throughout Alaska as they migrated to spawning grounds, because the water exceeded lethal temperature limits. These climate related stressors are further exacerbated by state and federal lands that are being opened to mining and related development on fish and wildlife populations.

The Session will address the impacts of increasing water temperatures in watersheds affected by land releases and therefore, the combined impacts of climate change and mining development on subsistence resources in Alaska including: 1) Application of models starting with global emission scenarios that will ultimately detect instream flows for specific subbasins and collection of instream flow, temperature and dissolved oxygen data; 2) Identify lands that include critical fish habitat and potential locate able minerals that have been opened for mining; and 3) A process for applying the modeling and data collected to assist policy makers and land managers to mitigate land uses that potentially exacerbate climate related impacts to watersheds.

Please contact us if you are interested in being a presenter on this topic and traveling to Orlando in the fall!

Tentative Presentation Topics include : 1) Forcasting drought and temperature increases and modeling stream flows in Alaska; 2) Use of Traditional Knowledge in Protecting Rivers in the Arctic; 3) Bureau of Land Management FLPMA Land Withdrawal Revocations; Overview of 2019 Water Year in Alaska; 4) Pacific Northwest Drought Early Warning System.

Federal Subsistence Management Program Continues Temperature Monitoring Project for Subsistence Rivers

The U.S. Fish and Wildlife Service’s Federal Subsistence Management Program will continue conducting a water temperature monitoring project for the next two summers at rivers and streams throughout Alaska. This effort is associated with fisheries monitoring projects funded through the Fisheries Resource Monitoring Program (Program), and has been ongoing since 2008. According to the Program, temperature can impact fish through changes in metabolic rate, primary production, respiration, growth, decomposition, water chemistry, migration timing and susceptibility to disease. At the same time “[d]evelopment adjacent to stream habitats…as well as changes in climate can potentially cause fluctuations in water temperature beyond the behavioral and physiological tolerance of aquatic organisms, including fish, that could have a deleterious effect on their productivity and availability to subsistence users.”

Federal, State, and Tribal organizations in Alaska are currently collecting water temperature data for such subsistence streams. The Program is looking to highlight the importance of uniform data collection, standardization, and reporting, to ensure that such data is reliable for monitoring climate change and supporting conservation actions.

The Alaska Online Aquatic Temperature Site (AKOATS) platform, hosted by the University of Alaska Anchorage’s Alaska Center for Conservation Science, is currently used to make this data available to the public. The platform was developed with the idea that it would serve as a centralized location to access stream temperature monitoring data collection across Alaska.

Emergency Recovery Plan for Global Freshwater Biodiversity Loss

Covering approximately 1% of the Earth’s surface, the world’s freshwater rivers, lakes and wetlands are home to 10% of all species and more fish species than in all the oceans combined. Posing a threat to global communities who rely on rivers, lakes, and tributaries for food, water, and economic well-being, however, 83% of freshwater species and 30% of freshwater ecosystems have been lost since 1970. In response to the alarming rate of loss of freshwater ecosystems, a recently released study developed by scientists from across a spectrum of environmental and academic institutions outlines a framework for protecting such ecosystems.

Calling it an “Emergency Recovery Plan”, the study proposes six scientifically based strategies to preserve freshwater biodiversity, that have proved successful in certain locations. These solutions include: Returning rivers and streams back to their natural flows; Protecting freshwater from toxic effluents, overfishing, invasive species and mining activity; Protecting critical habitat; and Restoring river connectivity through regulation of land uses and water infrastructure. James Dalton, Director of the International Union for Conservation of Nature Global Water Program says, “all the solutions in the Emergency Recovery Plan have been tried and tested somewhere in the world: they are realistic, pragmatic and they work. We are calling on governments, investors, companies and communities to prioritize freshwater biodiversity – often neglected by the conservation and water management worlds. Now is the time to implement these solutions, before it is too late.”

For more information see press releases for Conservation International and WWF.

Indigenous Communities are Essential Part of Climate Discussion

Native Village of Elim Staff Collecting Flow Data – Tubutulik River, Western Region, Alaska

A new report released by the People’s Climate Network (PCN)— an alliance of activists, scholars and citizens from around the world, suggests that the role indigenous communities can play in mitigating the climate crisis is being overlooked. While global climate change movements make headlines and ”highly-educated people in far-off cities make policy” the People’s Climate Report, attempts to “amplifying voices from the grassroots.”

The report also highlights coexistence of forests, wildlife and local communities is highlighted to provide the perspective of local communities of the impacts of climate change and extraction industries especially mining. Such development leads to loss of forest cover, depletion of groundwater, increase in net-carbon emissions, changes in local weather patterns, loss of traditional tribal livelihoods and a collapse of various plant and animal species—all in the name of ‘development’.

The report show cases the case of Devi, India in which twenty year earlier, locals took the lead in returning health back to forest ecosystem after mining activity devastated the area. This included groups of mostly women who get up early in the morning to patrol forests in groups and digging pools and making mud dams to conserve water. Now a fully recovered forest with abundant resources including a steady supply of food and water, which has resulted in the return of the animals.

According to the report, “[t]hese natural resource dependent communities are among the poorest of the poor.” “They have not had a single day of formal education. And yet they have been the ones protecting this 200-hectare forest for the past twenty years or so.”

Similarly, Last month Hannah Panci from the Great Lakes Indian Fish and Wildlife Commission spoke at Lawrence University as part of the Spoerl Lecture Series, about climate impact and preparedness. Specifically, Panci discussed working with almost a dozen local Native American tribes, to develop a climate vulnerability assessment which combines both scientific research and traditional ecological knowledge (TEK) in order to create a vulnerability score for different species on tribal lands.

The organization gathers TEK by visiting the various communities, which include members that still make their living off hunting, gathering and fishing, and interviewing community these members about changes they are noticing about fish and wildlife they use for subsistence. Through this process, important information about traditions that have been passed down for generations and which species are the most important to the tribes. According to Panci, two of the main ones are wild rice and walleye, but there are 11 primary species that tribal members are concerned about.

The Great Lakes Indian Fish and Wildlife Commission then applies this information to determine what impacts climate change is having on these species and apply current scientific data to create maps of the region where such impacts are occurring and apply protection measures. By combining conventional science and local knowledge of locals is the best possible means for assisting tribal communities in the Great Lakes to prepare for climate change.

Finally, during a recent event at UC Davis in March 12, professor Beth Rose Middleton who is chair of the Native American Studies Department and Fellow at the John Muir Institute of the Environment, discussed “Tribal Leadership in Climate Change Adaptation.” Professor Middleton discussed the leadership in environmental policy and planning provided by California Indian nations in traditional including land stewardship and interventions in state, national and international policy. Middleton’s research includes Native land trusts, Native-led conservation land acquisitions, tribal participation in the carbon credit market and the importance of re-introducing traditional fire management.

Trump Administration Adopts Navigable Waters Protection Rule

Last month the Environmental Protection Agency and Army Corps of Engineers announced the signing of a new water rule which finalizes the Trump administrations process for revising the definition for the Waters of the U.S. According to the EPA, the final “Navigable Waters Protection Rule…protects the nation’s navigable waters from pollution and result in economic growth across the country.” The new rule, however, limits the number and types of waters that are protected by the Clean Water Act to just four categories: territorial seas and traditional navigable waters, perennial and intermittent tributaries, certain lakes, ponds, and water impoundments, and wetlands adjacent to these categories.

The new rule, therefore, eliminates existing protections for water coming from rainfall, groundwater, farm, roadside and other ditches, prior converted cropland, farm and stock watering ponds, and waste treatment systems which are hydrologically connected to navigable waters and could therefore spread pollutants on to such waters. The NWPR, leaves intact, state and tribal laws in managing water resources within their own jurisdictions some of which have broader definitions than the federal government for waters that come under such regulatory jurisdiction.

To Learn more see the EPA’s Navigable Waters Protection Rule website or News Release.

The Native Village of Elim’s Seward Peninsula Temperature, Dissolved Oxygen and Stream Flow Monitoring Plan

Alaska Native village communities located on the Seward Peninsula region (Villages) rely on healthy watersheds, fish and wildlife for their subsistence needs. At the same time rising temperatures and low snow pack in the region are reeking havoc on the delivery of water when it is most needed. For example, air temperatures in the region, which are rising twice as fast as other places in the country, broke records during the month of July 2019.

These temperature increases are impacting the subsistence livelihoods of the Villages through decreased dissolved oxygen combined with other weather related changes, including low river flows, altered ice flows, and stream bank erosion. In addition, because rivers and streams located within the Western Alaska region are largely fed by snow melt, rising temperatures in the region means rain (instead of snow) is becoming more prominent in the fall and winter. This is resulting in increased seasonal flood events which threaten community infrastructure and scour stream beds used by fish and wildlife.

These sudden changes are impacting fresh water ecosystems during the summer months as well. In 2019 about 22 rivers and streams throughout Alaska reported record water temperatures, as compared to just 7 in 2018. As a result, in June and July 2019, thousands of salmon died as they migrated to spawning grounds in Western Alaska, because the water temperatures exceeded lethal limits for the fish. For example, the Tubulik near Elim and Koyuk had record temperatures as high as 16 degrees centigrad at the Vulcan Creek gage site, 30 miles from the mouth.

These climate related stressors are further exacerbated by non-climate stressors including mining and related development on fish and wildlife populations. Specifically, during 2020, the U.S. Bureau of Land Management will be opening over 46 million acres in 1-3 million acres increments, to mining and other development throughout Alaska. As part of this process, the agency plans to open about 3 million acres covered by the Kobuk-Seward Resource Management Plan (Plan) of BLM Alaska land mineral entry and remove community-supported Areas of Critical Environmental Concern. The Plan, however, does not address the impacts of increasing water temperatures in watersheds affected by land releases and therefore, the combined impacts of climate change and mining development on subsistence resources.

The Native Village of Elim is applying for funding for it’s Tubutulik River Temperature, Dissolved Oxygen (DO) and Stream Flow Monitoring Plan Project is working to develop a climate change risk assessment for the Tubutulik River Watershed (Watershed) that will include: 1) Application of drought and temperature forecasting for the Seward Penninsula to predict instream flows and temperature; 2) Protocols for collection of instream flow, temperature and dissolved oxygen data during the summer season when temperatures are at their highest; 3) Identify lands within the Watershed that include critical fish habitat and potential locateable minerals that have been opened for mining under the Kobuk-Seward Peninsula Resource Management Plan (RMP); 4) Identify a process for applying the modeling and data collected to assist policy makers and land managers to mitigate land uses that potentially exacerbate climate related impacts in the Watershed and 5) Apply for instream flow water rights under Alaska state law on stream reaches in sensitive watersheds that have been open to mining activity.

Once the Assessment is completed, it will serve as an ecosystem-wide vulnerability assessment for natural resource(s) that can be used by multiple tribes as a template for conducting their own modeling, data collection and outreach to federal and state agency land managers. There are multiple sensitive salmon streams and rivers within the RMP planning area that other tribes rely on for subsistence practices that will be impacted by the opening of lands to mining under the RMP. The Assessment will, therefore, specifically benefit the other Village communities located on the Seward Peninsula by assisting in the prediction of instream flows and temperature impacts to salmon and other fisheries, and measures that will result in quantifiable, locally based watershed protection from the potential impacts of climate change and land development.