State approves Pebble exploration plans

Alaska's Department of Natural Resources has refuted a legal challenge to Vancouver-based Northern Dynasty Minerals' exploration plans for the Pebble project this year. The company has already drilled over 600 holes, but formal opposition to the continued work was submitted in January by Anchorage attorney Geoffrey Parker on behalf of the Renewable Resources Coalition, Trout Unlimited, the Nondalton Tribal Council, Nunamta Aulukestai (Caretakers of Our Lands) and Robert B. Gillam.

"Although a DNR response is not required, I ... felt it was important to respond to your letter in order to clarify DNR's position on some of the matters you raised," Large Project Coordinator Tom Crafford wrote in an eight-page reply to Parker Feb. 9. "It is important to recognize ... that although the state maintains a financial agreement with NDM for the reimbursement of the state's large project review team expenses associated with the Pebble project, this relationship in no way diminishes or compromises the state's independent function, authority or responsibility in its review or permitting of the Pebble project," Crafford emphasized.

Northern Dynasty's Alaska Hardrock Exploration Application is for exploration and baseline studies activities that do not involve major excavations or construction of permanent facilities, Crafford noted. The Alaska Coastal Management Program consistency determination review of the application took into consideration the comments by Parker and other members of the public, and found no problems with Northern Dynasty's proposed activities, according to Crafford.

Baseline data not required for exploration

"DNR should demand that NDM respond to agency comments on baseline study plans and that NDM provide the baseline data it collected in 2005 and 2006," Parker said. Crafford responded that most of these data are being collected for National Environmental Policy Act purposes and are not required for exploration permitting. "DNR does not need all of the information NDM and/or their consultants have acquired or will yet acquire concerning hydrology, geology, water chemistry, wildlife, fish subsistence and local resident use ... in order to gauge the impacts of this year's proposed exploration activities," he wrote.

"If and when the Pebble project proceeds to development permitting, the public and state and federal agencies will have multiple opportunities to review and judge the adequacy of NDM's environmental baseline studies," Crafford continued. "NDM has voluntarily presented summaries of their study plans and baseline studies to state and federal agencies, but these presentations were not required," he added.

Drilling by Northern Dynasty will not be authorized to occur closer than 100 feet from any water body, and seismic exploration cannot occur any closer than 200 feet to any water body, so the reviewing agencies believe that the impacts of the exploration activities can be accurately assessed within the outlined areas, Crafford said. The project is not located in an ACMP-approved designated subsistence use area, but potential impacts to subsistence use were analyzed, and it was determined that the Pebble exploration will not limit access to subsistence resources or increase the use of subsistence resources by non-rural residents, he noted.

The exploration activities are not expected to cause significant adverse impacts to habitat, according to Crafford. "There will be no dredging or fill activities, no change in drainage patterns, surface water quality, and natural groundwater recharge areas, and very minimal disturbance to vegetation," he told Parker. The attorney had suggested that agencies failed to analyze the impacts of Northern Dynasty's activities on wildlife and subsistence.

DNR will inspect water use compliance

Parker also asserted that DNR could not reasonably determine the effects of Northern Dynasty's water appropriations on water flow and fish populations "because NDM failed to provide sufficient information for DNR to make such a determination." Crafford listed the documents that Northern Dynasty had supplied to DNR, which included a map showing areas where water would be withdrawn and used, and specifications of the quantity of water to be used and the type and size of equipment to be used to withdraw the water.

In accordance with its Fish Habitat permits, Northern Dynasty must use a screen mesh to surround the water intake structure to avoid entrainment, impingement or injury to fish. Adequate flow must remain in the watercourse to provide for the efficient passage and movement of fish. DNR staff will conduct field inspections to ensure permit compliance, Crafford noted.

"If one were to assume that water obtained for the support of all seven drilling rigs came from one tributary of the Upper Talarik, the authorized daily volume would be 113,400 gallons of water per day or an equivalent of 0.175 cubic feet of water per second," Crafford told Parker. "This represents less than five percent of the minimum mean daily flow recorded for the period of July 2004 through June 2006," he added. DNR's evaluation indicates that the proposed water withdrawal will have little to no measurable effect on the resources or hydrology of either the South Fork Koktuli River or Upper Talarik Creek watersheds, Crafford said.

Drilling waste, fuel storage regulated

Parker was also incorrect in arguing that "DNR cannot reasonably determine the impacts of NDM's waste disposal plans and the risks posed by storage of 5,000 gallons of airplane fuel unless NDM provides more specific information," according to Crafford. Most rock cuttings are returned to the drill hole from which they came, and the remainder must be buried in a pit and covered with the vegetative mat that was removed when the drill site was constructed. These and other stipulations ensure that environmental impacts from drilling waste will be "negligible," Crafford said. Regulations on the storage of fuel are equally stringent, he added.

In the most ambitious of his points, Parker requested that "DNR should condition its approval of NDM exploration permit applications on NDM's express and total waiver of any takings claims against the state and federal governments in the event NDM is not permitted to build and operate Pebble mine. ... Failure to demand such a waiver is likely to result in accusations against DNR for failing to protect the state when it had the opportunity to do so."

An attorney for the state wrote a memo recently that suggested Northern Dynasty might be able to claim millions of dollars in compensation if the project is blocked. Subsequently three attorneys for Trout Unlimited, one of the groups that is opposing Pebble, wrote a memo arguing that Northern Dynasty would likely be unable to establish a claim. "DNR seriously questions the legality of this recommended action and feels that it would be unwise and imprudent to pursue it," Crafford replied to Parker's request for a waiver of takings claims.