The implementation of Alaska's anti-degradation policy is an emerging battlefield in the ongoing conflict between environmental groups seeking maximum protection for waterways in the state and resource development companies hoping to prevent added layers of red tape and too stringent water quality guidelines.

While strict water quality standards have been established on state and federal levels, many streams, rivers and lakes in Alaska have naturally occurring waters that exceed these criteria. The U.S. Clean Water Act requires each state to establish a policy that specifies how to handle water bodies where manmade discharges that would meet water quality standards would be less pristine than what is already there, thus causing some degradation to the water.

In addition to an anti-degradation policy, the federal law requires each state to establish an implementation plan that specifies procedures and criteria used to determine when waters are degraded by discharges, whether there are cost effective alternatives to a new or increased discharge and what social and economic benefits to the state would be necessary to justify any degradation.

While the Alaska Department of Environmental Conservation established an anti-degradation policy in 1996, the agency has yet to finalize implementation procedures. Establishing a concrete set of guidelines is a crucial step in adding surety to the regulatory process for industry and others who hope to gain water discharge permits in the state.

Three tiers

Allan Nakanishi, who heads the Mining Water and Waste Management section of DEC's Division of Water, told attendees at the Alaska Miners Association 2011 convention that the state's anti-degradation policy mirrors federal requirements - including the use of a three-tier structure to categorize the water bodies.

Tier 1 refers to water bodies in which existing water quality is below the state and federal standards for protecting aquatic life and human contact, also referred to as fishable/swimmable uses, thus would not be degraded by discharges that meet existing state and federal regulations.

Nakanishi explained that Alaska's anti-degradation policy protects the existing uses of the waters that fall into this category - broadly categorized as water supply, recreation and fish habitat.

"With each use there is a particular water quality requirement or standard to maintain that use," Nakanishi explained.

Waterways considered tier 1, or existing uses, would be subject to the regulations applicable to its current use but would not be subject to further regulations or reviews under the anti-degradation requirements.

Red Dog Creek draining the Red Dog zinc mine would be an example of a tier 1 water body due to its naturally occurring high quantities of metals.

Tier 2 refers to water bodies in which existing water quality is above fishable/swimmable water standards, thus would be degraded by discharges that meet existing state and federal regulations.

"Tier 2 water bodies are high quality waters and are really what this anti-degradation analysis is all about," Nakanishi told the mining industry representatives in the room.

Tier 3 refers to water bodies that are designated Outstanding National Resources Waters, which would be afforded the highest level of protections and would not be allowed to be degraded by discharges without consideration to social, economic or other benefits of a proposed development.

While it is up to Alaska to determine which of its waterways falls into tier 3, the CWA provides guidance. The federal policy says Outstanding National Resource Waters can be designated "where high quality waters constitute an outstanding national resource, such as waters of national and state parks and wildlife refuges and waters of exceptional recreational or ecological significance."

"Water quality must be protected and maintained - meaning there are no new or increased discharges; existing uses must be protected; and existing discharges could be managed for reduction or elimination over a period of time, once a water body has been determined to be a tier 3 water," explained Nakanishi.

Alaska has yet to establish a procedure for determining what waterways will fall into this most stringently protected class and none have yet to be categorized as tier 3.

In 2010, Trout Unlimited and a group of partner organizations nominated the Koktuli River - a Southwest Alaska waterway with tributaries near the Pebble deposit - as an Outstanding National Resource Water.

Trout Unlimited said the main goal of designating the Koktuli to tier 3 status is to assure the development of a large-scale metallic sulfide mine - such as is being engineered by Anglo American plc and Northern Dynasty Minerals Ltd., partners in the development of the Pebble Project - will not cause any direct, indirect or cumulative adverse effects on the river's wild salmon or rainbow trout, and the industries and activities these fish support.

Interim procedures

Though Alaska has not officially adopted permanent methods for executing its anti-degradation policy, in December, 2010, DEC established interim implementation procedures.

The drafting of this provisional guidance was spurred, to a large degree, by an appeal of water discharge permits issued to Teck Resources Ltd. for the development of the Aqqaluk deposit at the Red Dog Mine in Northwest Alaska.

"Prior to the state publishing the anti-degradation guidance, stakeholders have argued that DEC can not make anti-degradation determinations without implementation of a guidance," explained Nakanishi. "This was highlighted in Kivalina's challenge of certification of the Red Dog Mine permit."

Representing a handful of residents from the village of Kivalina, two environmental law firms - Trustees for Alaska and Center on Race, Poverty and the Environment - contended that the discharge limits set for the five criteria at Red Dog breached anti-degradation laws.

Instead of suspending the conditions under dispute - which were the discharge limits for zinc, lead, selenium, cyanide and total dissolved solids - EPA decided to temporarily revert the limits to the higher standards of a permit issued to Teck in 1998.

"We knew that the state was going to develop some interim anti-degradation procedures, and so we decided; 'well let's just wait for those procedures and then ask the state to revise the Red Dog Mine anti-degradation analysis consistent with those procedures and then reinstate those permit limits, and then we feel we will have a more defensible permit,' EPA Region 10 Mining Coordinator Patty McGrath explained to Mining News shortly after the early 2010 decision. "Even if the permit limits were appealed again, we feel we could defend them much easier than we can now."

Finding the interim implementation procedures developed by Alaska in line with its own anti-degradation policies, EPA is currently reevaluating the five contested discharge limits at Red Dog.

"EPA filed a letter finding the guidance consistent with the federal and state anti-degradation policy," Nakanishi noted. "We were very surprised to get that letter because it is about as close to an approval as you can get from EPA."

Pending legal challenge

Environmental groups disagree with the EPA's evaluation of Alaska's provisional anti-degradation procedures.

"Since the interim anti-degradation guidance has been published, nearly every permit issued by DEC has received some type of a comment on the legality of the anti-degradation guidance, Nakanishi told the mining crowd.

"Earlier this year Trustees for Alaska filed a lawsuit against DEC, formally challenging the legality of the guidance.

The basis of the law firm's argument is that the interim guidance establishes regulation without going through the required rule-making processes. The state's position is that a guidance is not a regulation, and therefore, is not subject to the same processes.

"We don't have a decision from the court, but I think it is important to note that our interim guidance was not stayed by the court," Nakanishi pointed out. So, it remains in effect and in use.

The most recent example, according to the DEC regulator, is an appeal of an Alaska Pollutant Discharge Elimination System (APDES) permit issued to Hecla Mining Co. for the Greens Creek Mine near Juneau. Southeast Alaska Conservation Council, which filed the formal complaint, is hinging its argument largely on the legality of Alaska's anti-degradation procedures.

Creating permanent methods

"The development of the final implementation methods is a very high priority for the department," Nakanishi emphasized.

He said DEC is currently compiling a list of stakeholders that will be involved in a workgroup for establishing permanent anti-degradation implementation procedures. The first meeting of this group is tentatively set for January 2012.

Nakanishi said the workgroup will likely be small, with government representatives making up the largest portion of its contingent. The meeting though will be open to public participation.

The workgroup will be tasked with creating anti-degradation implementation procedures without any clear template on the federal level, a situation that has created national inconsistencies as states have developed their individual methods.

Water body classification methods will make up a large portion of the workgroup efforts.

Under interim implementation procedures, water bodies will be classified on a parameter-by-parameter basis. This means that most of the rivers, streams and lakes in Alaska will be deemed both as tier 1 and tier 2, dependant on the levels of any given criteria.

"So, for example, the same water body could be tier 1 for arsenic, if it already has arsenic levels equal to or above levels allowed under the fishable/swimmable criteria for arsenic, but tier 2 for everything else that the applicant proposes to discharge into it," DEC explains in its interim anti-degradation implementation methods.

This methodology could give way to a system that simply classifies a waterway as tier 1 or tier 2, dependent on its existing water quality.

Due to its potential to restrict development, the methods for making tier 3 classifications and the designation of water bodies into this highest protective level will likely become a point of contention between environmental and industrial groups.

Rumored federal regulations could send the workgroup back to the drawing board.

"There is word that EPA is considering developing regulations regarding state anti-degradation procedures," said Nakanishi.

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Shane Lasley, Publisher

Over his more than 16 years of covering mining and mineral exploration, Shane has become renowned for his ability to report on the sector in a way that is technically sound enough to inform industry insiders while being easy to understand by a wider audience.

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