# Complaint — Alaska v. Southeast Alaska Alaska Conservation Council (No. 07-990) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Complaint - **Published:** January 1, 2009 ## Text - reme Sy . ay rae eae \! ag Nos. 07-984 and 07-990 SEP 17 2008 neenenerns_ap eco nee 7 IN THE Supreme Court of the Hnited States COEUR ALASKA, INC., Petitioner, v. SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL., Respondents. STATE OF ALASKA, Petitioner, Vv. SOUTHEAST ALASKA CONSERVATION COUNCIL, ET AL., Respondents. On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit JOINT APPENDIX Volume 2 of 2 (Pages 287a-555a) THEODORE B. OLSON THOMAS S. WALDO Counsel of Record Counsel of Record GIBSON, DUNN & CRUTCHER LLP EARTHJUSTICE 1050 Connecticut Ave., N.W. 325 Fourth Street Washington, DC 20036 Juneau, AK 99801 (202) 955-8500 (907) 586-2751 Counsel for Petitioner Counsel for Respondents Coeur Alaska, Inc. Southeast Alaska Conservation Council, et al. [Additional Counsel Listed on Inside Cover] PETITION FOR WRIT OF CERTIORARI FILED JANUARY 28, 2008 CERTIORARI GRANTED JUNE 27, 2008 MATTHEW D. MCGILL AARON D. LINDSTROM GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Ave., N.W. Washington, DC 20036 ROBERT A. MAYNARD PERKINS COIE LLP 251 East Front St. Ste. 400 Boise, ID 83702 Counsel for Petitioner Coeur Alaska, Inc. JONATHAN S. FRANKLIN TILLMAN J. BRECKENRIDGE FULBRIGHT & JAWORSKI L.L.P. 801 Pennsylvania Ave., N.W. Washington, DC 20004 (202) 662-0466 TALIS J. COLBERG Attorney General STATE OF ALASKA Department of Law P.O. Box 110300 Juneau, AK 99811 (907) 465-3600 CAMERON M. LEONARD Assistant Attorney General STATE OF ALASKA Department of Law 100 Cushman St., Suite 400 Fairbanks, AK 99701 (907) 451-2311 Counsel for Petitioner State of Alaska Scott L. NELSON PUBLIC CITIZEN LITIGAITON GROUP 1600 20th St., N.W. Washington, DC 20009 (202) 588-1000 Counsel for Respondents Southeast Alaska Conservation Council, et al. GREGORY G. GARRE Solicitor General Counsel of Record RONALD J. TENPAS Assistant Attorney General ELLEN DURKEE LANE MCFADDEN Attorneys DEPARTMENT OF JUSTICE Washington, DC 20530-C001 (202) 514-2217 Counsel for Federal Respondents DAVID C. CROSBY Counsel of Record 5280 Thane Road Juneau, AK 99801-7717 (907) 586-6262 Counsel for Respondent Goldbelt, Inc. [List of Additional Counsel Continued from Front Cover] TABLE OF CONTENTS Page Volume I A. Relevant Docket Entries from the United States Court of Appeals for the Ninth Circuit, No. 06-35679 ......................0.c000 la Relevant Docket Entries from the United States District Court for the District of Alaska, No. 1:05-CV-00012- Response to Comments Document re- garding Section 404 Definitions of “Fill Material” and “Discharge of Fill Mate- ee ii iilitahinrnadeciitbesinserconsseess 22a Kline Environmental Research, Ken- sington Project Lower Slate Lake Tailings Impoundment: Habitat Crea- tion and Mitigation Plan (July 14, 2003).....128a Memorandum from Ed Kline, Kline En- vironmental Research, to Susan Hitchcock, Corps of Engineers (Dec. 23, REESE SE RIN TSS. AES 13la Memorandum from D. Regas, et al., EPA, to R. Smith, EPA Region X (May BS ulgaiiaiiiiiedindatinsdddadiiadadanss tieahindiabonsanncne l4la Technical Memorandum from Ed Kline, Kline Environmental Research, to Rick GERI, Bag BR sesttinsncescosesevesessessscees 150a Letter from Dan Easton, State of Alaska Department of Environmental Conservation, to John Leeds ITI, De- partment of the Army (Dec. 6, 2004) ........... 155a M. il Forest Service, Kensington Gold Project Final Supplemental Environmental Impact Statement (Dec. 2004) (ex- Forest Service, Kensington Gold Project 2004 Record of Decision (Dec. 2004) ............ 207a Coeur Alaska, Inc., Reclamation and Closure Plan for the Kensington Gold 2 kt | | SE ren IEE 249a Letter from Ron Klein, State of Alaska Department of Environmental Conser- vation, to Rich Richins, RTR Resource Management, enclosing Certificate of Reasonable Assurance (May 6, 2005) .......... 256a Corps of Engineers, Section 404 Permit I ili aad iladnaiencitindinliin 266a Volume II N. EPA, Record of Decision: Kensington Gold Project, Section 402 NPDES Per- ss essnmsicons 287a EPA, NPDES Permit No. AK-005057 GN i santinncthdietinenssoonsvsoonses 317a Declaration of Joe Kahklen (Oct. 12, Corps of Engineers, Revised Record of BPOCHREGR CREME. BP, BP cccccccccccccvccscccsccccscoces 340a Corps of Engineers, Section 404(b)(1) Evaluation for Kensington Gold Project ee EN, Tt lcashictinipaadndbanatepascencieeiinninbeniescons 378a ili Corps of Engineers, Section 404(b)(1) Evaluation for Cascade Point (Mar. 29, EI IE CSc 434a First Amended Complaint (Apr. 4, , ER SES Ea os EO oe oe 459a Opinion of the United States District Court for the District of Alaska (Aug. 3, ea Uiiciihickipdiiiiniciiieabiaaenantiiadbyiniiinsinniiniewsenmenss 478a Declaration of Randy Wanamaker (Aug. en nenientitnnniapinniniaiiiadiiaicseiepnecsinconsees 497a Order of the United States Court of Ap- peals for the Ninth Circuit Granting Injunction Pending Appeal (Aug. 24, SUI icisdesicniieicdilpipditiilinddsiabdihidiiadiitpiiitidinedensncsers 509a Order of the United States Court of Ap- peals for the Ninth Circuit Denying Motion to Vacate the Injunction Pend- ing Appeal (Dec. 8, 2006).................cceeeeeeeee 5lla Opinion of the United States Court of Appeals for the Ninth Circuit (May 22, RESIS ESR Ain oi eo a ee a 517a Order of the United States Court of Ap- peals for the Ninth Circuit Denying Rehearing En Banc (Oct. 29, 2007).............. 552a . Order of the United States Court of Ap- peals for the Ninth Circuit Staying the Mandate (Nov. 14, 2007} ..................cccccceseeee 554a . Order of the United States Court of Ap- peals for the Ninth Circuit Directing Preparation of Reclamation Plan (Nov. ny EINE ibid iacerlpimiiniaaaiininaenacsauinepieihidatinnionnionins 555a 287a APPENDIX N Sam UNITED STATES ENVIRONMENTAL &) PROTECTION AGENCY REGION 10 1200 Sixth Avenue Seattle, WA 98101 RECORD OF DECISION KENSINGTON GOLD PROJECT DECISION TO BE MADE This Record of Decision (ROD) documents the de- cision by the U.S. Environmental Protection Agency (EPA) Region 10 to issue a National Pollutant Dis- charge Elimination System (NPDES) permit for discharges from the Kensington portal to Sherman Creek, discharges of treated domestic wastewater to Lynn Canal, and discharges from the proposed tail- ings storage facility (TSF) to East Fork Slate Creek. This project is considered a new source discharge and, in accordance with Section 511(c)(1) of the Clean Water Act, is subject to the provisions of the National Environmental Policy Act (NEPA). The ROD is issued pursuant to NEPA (42 U.S.C. §4321 et seq.), the Council of Environmental Quality (CEQ) NEPA regulations (40 CFR Parts 1500-1508), and EPA's NEPA imz.2menting regulations (40 CFR Part 6, Subpart F). EPA participated in the develop- ment of the Kensington Gold Project Final Supplemental Environmental Impact Statement 288a (FSEIS) as a cooperating agency, with the U.S. For- est Service (USFS) as the lead agency. EPA's decision to issue an NPDES permit is based upon the analysis in the FSEIS as supplemented by the U.S. Army Corps of Engineers (USACE) Clean Water Act 404(b)(1) analysis, which identified alternative D as the least environmentally damaging practicable al- ternative. The Notice of Availability of the FSEIS was published in the Federal Register by the USFS on December 23, 2004. EPA issued the draft NPDES permit on June 21, 2004 for a 45-day comment pe- riod. Public hearings were held in Juneau, Alaska on July 26, 2004 and in Haines, Alaska on July 27, 2004. EPA's response to comments on the draft NPDES permit is included in Appendix A. INTRODUCTION The Kensington Gold Project is an underground gold mine located approximately 45 miles north- northwest of Juneau, Alaska, in the Tongass Na- tional Forest (Figure 1; FSEIS Figure 1-1). The Kensington project has undergone three iterations of environmental review and was previously permitted in 1998. In 1990, the Kensington Venture (a joint venture between Coeur Alaska, Inc. [Coeur] and Echo Bay Exploration) first submitted plans to de- velop the mine to the USFS. The USFS completed the Final Environmental Impact Statement (FEIS) in 1992. The 1990 plan included underground mining to recover the ore, processing the ore via flotation, cyanidation, gold refining, and disposal of the tail- ings in a tailings impoundment built in the Sherman Creek drainage. The impoundment would have been sized to accommodate 30 million tons of tailings. The proposal included discharging wastewater to Lynn Canal following treatment, and shuttling employees 289a to the mine site using helicopters. The operation would have used liquefied petroleum gas to fuel on- site generators. A marine terminal developed at Comet Beach in Lynn Canal would have handled supply deliveries and gold shipments. The Kensing- ton Venture never obtained all the permits necessary to build the mine, and in 1995 Coeur became the sole stakeholder in the property. Coeur then, in 1995, submitted an amended plan of operations to the USFS. In June 1996 Coeur revised the 1995 plan in response to issues raised during scoping. The 1996 amended plan, included removal of the cyanide circuit and off-site processing of the flotation concentrate, backfilling a portion of the tailings in the mine, and disposal of the remaining tailings in a 20 million ton dry tailings facility (DTF) constructed between Sherman and Sweeny creeks. Coeur's pro- posal also included using diesel instead of liquefied petroleum gas to fuel generators, and discharging mine water to Sherman Creek and DTF effluent to Camp Creek. The 1996 plan was analyzed in the Fi- nal Supplemental EIS and approved by the USFS in a ROD signed in August 1997. Coeur obtained all permits necessary for construction from federal, state, and local authorities, including an NPDES permit from EPA, issued on May 14, 1998 (Permit No. AK-005057-1). The permit authorized discharge of drainage from the Kensington portal, which is treated and discharged to Sherman Creek. It also au- thorized the discharge from the permitted DTF to Camp Creek and domestic wastewater discharge to Lynn Canal. In November 2001, Coeur submitted another amendment to the plan of operations to the USFS. This plan, which initiated a second supplemental en- 290a vironmental impact statement, proposed a number of changes to the approved plan, including changing the location of the processing facilities, tailings disposal, and site access and employing a different means of transportation. The operation would also mine a smaller portion of the ore body containing higher av- erage gold concentrations. This amendment also proposes to use a dock to be built at Cascade Point on property held by Goldbelt Incorporated, an Alaska Native corporation. The 2001 amended plan formed the basis for Alternative B for the December 2004 FSEIS. The USFS selected Alternative D in a ROD signed on December 9, 2004. Coeur revised its plan of operations to conform to Alternative D in May 2005. The USFS approved the plan of operations in June 2005. The purpose of the proposed action is to consider changes to the previously permitted project. The changes were intended to improve efficiency and re- duce the area of surface disturbance associated with the 1997 mining plan and to provide more reliable transportation and access by improving worker safety during transit to the site and eliminating ship- ping delays related to weather and sea conditions at Comet Beach. The improved reliability of access would allow Coeur to reduce the amount of diesel storage, as well as inventories of materials and sup- plies. Tailings disposal would require a smaller area of surface disturbance under the proposed action compared to the 1997 plan by utilizing a 20-acre lake for tailings storage (Lower Slate Lake). The U.S. Forest Service was the lead agency for preparation of the Kensington Gold Project Final Supplemental EIS. EPA, the U.S. Army Corps of En- gineers, and the State of Alaska Department of 29l1a Natural Resources (ADNR) were cooperating agen- cies because of the federal and state authorizations and approvals required for this project. EPA was a cooperating agency because of a decision regarding NPDES permit issuance. In accordance with NEPA, the FSEIS was prepared to reduce duplication, ex- cessive paperwork and delay, and to address federal and state regulatory requirements. Through EPA's participation as a cooperating agency, we have de- termined that the FSEIS adequately describes the potential direct, indirect, and cumulative effects as- sociated with the Kensington Mine Project. Sections 301 and 306 of the Clean Water Act (CWA) require that EPA develop wastewater effluent standards for specific industries, including gold mines. These standards are established for both ex- isting sources and “new sources". Because this project would be a new source, the New Source Per- formance Standards (NSPS) for gold mines and mills are applicable to the project (40 CFR 440.104). NPDES permit limits and requirements are estab- lished to ensure compliance with the NSPS and state water quality standards. The NSPS include effluent limits applicable to discharges of mine drainage; they also prohibit the discharge of process water (includ- ing mine tailings). An exception is provided for excess flows associated with net precipitation and/or co-mingled mine water where discharge of such flow is subject to the comparable effluent limits for mine drainage. In states that have not been delegated NPDES permitting authority, such as Alaska, EPA is authorized to permit point source discharges of efflu- ent, including process wastewater and stormwater. Where EPA is the permitting agency, the regulations provide that issuance of a new source NPDES is sub- 292a ject to the environmental review requirements of NEPA. The 5-year NPDES permit issued by EPA for the 1998 project expired on May 14, 2003, but was ad- ministratively extended until a new permit is issued because Coeur submitted a timely application in Oc- tober 2002. Couer submitted a revised application for an NPDES permit on March 16, 2004. The final NPDES application submittal, consistent with the proposed project revisions, was made on June 15, 2004. The application addresses the current dis- charge to Sherman Creek, treated domestic wastewater discharge during construction, and the proposed discharge from the tailings storage facility (TSF) in Lower Slate Lake. PROPOSED MINING OPERATION The Kensington ore body extends trom the sur- face to a depth of approximately 3,000 feet and is irregular in both shape and distribution of gold. Af- ter a two-year construction period, mining would be accomplished over a projected period of 10 years us- ing a long hole, open stoping method. Ore would be mined at a rate of 2,000 tons per day targeting high- grade gold ore. Ore would be hauled by truck to the mill site located near the Jualin mining area. After crushing, the ore would be transferred to a grinding circuit. Following grinding, oversized material would be returned to the head of the grinding operation, while undersized material would be separated into coarse and fine materials using centrifugal cyclones. From the cyclones, heavy material would go to a gravity concentrator and light material would go to a conditioning tank that feeds a flotation circuit. Con- centrate from the gravity concentrator and the flotation circuit would be dewatered, and approxi- 293a mately 700 tons per week of concentrate would be transported from the site. From 2,000 tons of ore per day, mining and processing would produce approxi- mately 400 tons of waste rock per day and approximately 7.5 million tons of tailings over the lifetime of the proposed project. Waste rock would be disposed in two disposal ar- eas near the Kensington portal and near the Jualin mine area. Tailings would be separated into coarse and fine fractions. The coarse tailings would be pumped to the mine areas that need backfill. At least 40% of the tailings would be backfilled. The fine frac- tions would be disposed in the tailings storage facility. Mine drainage is currently combined with runoff from waste rock piles and other disturbed areas and discharged to Sherman Creek through Outfall 001, pursuant to the 1998 NPDES permit. Underground workings that produce mine drainage, as well as waste rock, were developed as part of exploration ac- tivities and will be expanded as active mining operations are initiated. Water from mine dewater- ing operations will continue to be collected, clarified, and filtered underground, if necessary, and then pumped to an above ground mine water treatment facility. Although the revised proposal includes ac- cess to the workings by tunnels from both the Kensington and Jualin sides of the property, all mine drainage would be collected and routed to Outfall 001. Tailings slurry from the mill would flow through a 3.5 mile pipeline to the TSF, which would be formed by the natural lake basin of Lower Slate Lake and a dam constructed at the outlet of the lake. The darn would be a concrete-faced rockfill dam con- 294a structed in two phases. The TSF would be designed to hold 4.5 million tons of tailings. Mid-lake East Fork Slate Creek would be diverted around the TSF. Creek water would be removed from behind a con- structed berm through a 20-inch diversion pipeline. The TSF will receive water from slurry transport of tailings as well as undiverted natural inflows from drainage areas immediately adjacent to the TSF and overflows from the berm. Water will be recycled from the TSF to the mill at a rate of approximately 100 gallons per minute (gpm). The discharge from the TSF (Ouitfall 002) will be treated via reverse osmosis then combined with the diverted natural flows and pumped into the East Fork Slate Creek drainage be- low the TSF. DESCRIPTION OF PROJECT ALTERNATIVES NEPA requires that agencies consider alterna- tives to the proposed action that address the significant issues identified during the scoping proc- ess. NEPA also requires that the alternatives analysis include a No Action Alternative. Because the FSEIS is a supplement to a NEPA analysis that resulted in a permitted project (the 1997 mining plan), the No Action Alternative in this case repre- sents no changes to the approved project. The FSEIS also includes an alternative (Alternative Al) that re- flects a mining scenario that could occur if the No Action Alternative was selected, i.e., the operator could choose to lower the production rate and pursue a smaller portion of "high-grade" gold ore similar to what is proposed in the proposed action. The follow- ing discussion and Table 1 provides a summary of the No Action Alternative (Alternative A), reduced mining rate of the No Action Alternative (Al), and three action alternatives (Alternatives B, C, and D). 295a Section 2 of the 2004 FSEIS provides detailed de- scriptions of each of the following alternatives for the Kensington Gold Project. Alternative A - No Action The No Action Alternative functions as the base- line against which the effects of other alternatives are compared. As noted above, the No Action Alter- native represents a previous action, which in this case is the 1997 mining plan that received agency approval and authorizations in 1998. Alternative A corresponds to the 1997 SEIS Alternative D. Alter- native A includes mining the entire ore body and underground crushing of ore with aboveground grinding and flotation. Flotation concentrate would be shipped to a processing facility off-site. There would be no on-site cyanidation circuit. Employees would be housed on-site and transported by helicop- ter for weekly rotations. Supplies, including fuel, would be delivered to a marine terminal constructed on Comet Beach. Approximately 25% of the tailings would be backfilled. The rest of the tailings would be dewatered before being placed in the DTF. The DTF would have the design capacity to hold 20 million tons of tailings and would include an engineered berm around each cell of the facility. Wastewater from tailings dewatering would be treated and dis- charged to Sherman Creek. The production rate would be 4,000 tons of ore per day and 400 tons of waste rock per day. The waste rock would be used in the construction of the DTF. Road and DTF construc- tion would require the development of sand and gravel and till borrow areas. Alternative Al - Reduced Mining Rate, DTF Alternative Al reflects a mining plan similar to that described for Alternative A but uses the same 296a mining rate and tailings production levels consistent with Alternatives B, C, and D (2,000 tons per day and 7.5 million tons total, respectively). Alternative Al would result in 4.5 million tons of tailings being placed in the DTF, assuming that 40 percent of the tailings would be haat-died. The DTF would be approximately 65 percent smaller than it would be under Alternative A. The reduced mining rate presented under Alternative Al would produce very limited amounts of waste rock. Because waste rock would not be available for use in DTF construc- tion under this alternative, the impact analysis assumes the same number of acres of sand and gravel borrow areas would be required as under Al- ternative A, although the coarse and fine till borrow areas would be reduced in size. Other aspects of Al- ternative Al, including wastewater management and transportation of employees and materials, would be the same as those described under Alternative A. Alternative B —- Coeur's Proposed Action Alternative B reflects a number of changes to the mine plan compared to the No Action Alternative. These changes include construction of a TSF in Lower Slate Lake for tailings disposal instead of the dry tailings facility, relocating milling operations to the Johnson Creek drainage, and eliminating the personnel camp. The operation would mine a smaller amount of ore with a higher average gold concentra- tion compared with that proposed under Alternative A. The production rate would be approximately 2,000 tons of ore per day. Alternative B would include the development of a tunnel connecting the Kensington and Jualin areas of the mine. Access to the site would be from marine terminals built in Slate Creek Cove and at Cascade Point (Figure 2; FSEIS Figure 297a 1-2). A daily shuttle boat service would transport employees to and from the project site. The TSF would be sized to accommodate the disposal of 4.5 million tons of tailings (Figure 3; FSEIS Figure 2-6), while approximately 3.0 million tons of tailings would be used as backfill in the mine. Borrow areas would be developed for construction of the TSF dam and roads. This alternative includes recycling water from the TSF to the mill circuit. Alternative B would require upgrading the 5-mile-long access road and constructing a 3.5-mile pipeline access road and a 1- mile cutoff road connecting the other two roads. Alternative C - Dock Location and Design/ Di- version Alternative C is the same as Alternative B except it includes surface water diversions around the TSF and a marine terminal at Echo Cove instead of Cas- cade Point. The dock in Echo Cove would be located approximately 0.75 mile north of the existing Echo Cove boat ramp (Figure 2; FSEIS Figure 1-2). Mine workers would use this dock to reach the shuttle boat that would transport them to the dock at Slate Creek Cove. The landing craft ramp at the Slate Creek Cove marine terminal would be eliminated, minimiz- ing the amount of fill placed in the intertidal zone. Alternative C would not include recycling water from the TSF and the mill circuit. This alternative would include diversion channels to direct the flow from Mid-Lake East Fork Slate Creek and overland runoff from undisturbed areas around the TSF (Figure 4; FSEIS Figure 2-9). The diversion would discharge to a spillway at the top of the TSF dam. The diversion would require a dam on Upper Slate Lake to main- tain water levels sufficient to reach the spillway at the TSF dam. The purpose of the diversion would be 298a to minimize the volume of fresh water in contact with the tailings. Alternative D - Modified TSF Design and Water Treatment Alternative D was developed to address concerns about the TSF effluent meeting NPDES permit lim- its for protection of downstream water quality in East Fork Slate Creek below the TSF. Alternative D is the same as Alternative B, except it also includes diversion of stormwater and surface water around the TSF, TSF outfall water treatment, and a tailings cap at closure. Alternative D includes a dam in Mid- Lake East Fork Slate Creek that would gravity-feed a pipeline diversion around the TSF (Figure 5; FSEIS Figure 2-12). Water would be treated prior to discharge from the TSF via a reverse osmosis treat- ment system, which would provide solids and metals removal to ensure compliance with permit limits. Ef- fluent from the treatment system would discharge to the diversion pipeline. Alternative D also requires a cap over the tailings at closure unless the operator could demonstrate to the USFS, USACE, ADNR, and EPA that the tailings are not toxic. ENVIRONMENTALLY PREFERABLE ALTERNATIVE The environmentally preferable alternative "or- dinarily, means the alternative that causes the least damage to the biological and physical environment; it also means the alternative which best protects, preserves, and enhances historic, cultural, and natu- ral resources" (CEQ, 1981: Forty Most Asked Questions, no. 6a). On December 1, 2004, at the request of the U.S. Forest Service, EPA submitted its designation of an 299a environmentally preferable alternative for inclusion in the FSEIS. EPA's selection of an environmentally preferable alternative was based on the record at the time, which lacked two important elements. First, the record lacked a completed ESA analysis by the National Marine Fisheries Service (NMFS) address- ing potential impacts to listed species and designated critical habitat in Berners Bay. Second, the record lacked a completed Clean Water Act (CWA) § 404(b)(1) analysis from the U.S. Army Corps of En- gineers, which must’ determine the least environmentally damaging practicable alternative and address significant degradation. Based on information available at the time and on EPA's comparative analysis of the alternatives, EPA concluded that Alternative A is the Environ- mentally Preferable Alternative. Alternative A is the only alternative that avoids the habitat loss and the loss of natural ecological functions in Lower Slate Lake during mine operations. Alternative A also avoids impacts to critical habitat and resources in Berners Bay that would result from dock construc- tion, operation, and vessel activities. The USFS and the ADNR identified both Alternatives A and D as environmentally preferable. Since that time; NMFS has issued a Biological Opinion (BO) and the Corps of Engineers has issued CWA 404 permits for the project. In the BO, issued on March 18, 2005, NMFS stated that individual Stellar sea lions and humpback whales within the action are may be adversely impacted. However, the BO concluded that Alternative D, as proposed, is not likely to jeopardize the continued existence of listed species, or destroy or adversely modify designated critical habitat found in proximity to the action area. 300a NMFS maintained its earlier recommendation to use an alternative dock location to Cascade Point, pref- erably outside Berners Bay, to facilitate transportation of crews to the mine. The BO also in- cluded a list of conservation recommendations to minimize adverse effects to the listed species. The Corps of Engineers CWA 404(b)(1) analysis, issued with the Record of Decision and CWA 404 permit, on June 17, 2005, concluded that Alternative D is the least environmentally damaging alternative based on acreages of wetland impacts. The Corps also concluded that Alternative D is economically more attractive than the previously permitted pro- ject. The USFS selected Alternative D and approved the modifications to the 1997 Approved Plan of Op- erations in its Record of Decision (December 2005). The State of Alaska has also issued its decisions, au- thorizations, and certifications for Alternative D. However, for the reasons discussed in our De- cember 1, 2004 letter, EPA continues to believe that Alternative A is environmentally preferable. EPA DECISION EPA's decision regarding the Kensington Gold Project involves the issuance of an NPDES permit based on Coeur's NPDES permit application, which reflects Alternative D. The permit sets conditions on the discharges of pollutants from the mine to Sherman Creek (Outfall 001), from the TSF to East Fork Slate Creek (Outfall 002), and domestic waste- water to Lynn Canal (Outfall 003). Outfall 001 represents the discharge from set- tling facilities that collect treated (metals precipitation and filtration) mine drainage from 301la mine dewatering operations and runoff from waste rock piles and other disturbed areas in the Sherman Creek drainage. Outfall 002 will discharge water from the TSF, which includes the natural lake basin of Lower Slate Lake and a constructed retention em- bankment at the outlet of the lake. Outfall 003 will discharge treated domestic wastewater for the Ken- sington Mine camp during construction. No permanent camp is proposed to remain at the site during the operation phase of the project. The NPDES permit includes effluent limitations specific to each outfall and other requirements to ensure wa- ter quality protection in each of the water bodies mentioned above, including compliance with the Alaska Water Quality Standards (AWQS) for aquatic life and human health. EPA made the draft NPDES permit and Fact Sheet available for a 45-day public review period on June 21, 2004. The draft permit contained effluent and receiving water (ambient) monitoring require- ments as well as requirements that the permittee develop a Best Management Practices program for the control of toxic and hazardous pollutants. The final permit and response to comments are included in this ROD in Appendix A. FACTORS CONSIDERED IN THE DECISION Scope of EPA's Clean Water Act § 402 Authority EPA's NPDES permitting authority is limited to issuing permits based on NPDES permit applications we receive, so long as it is feasible for the project, as described in the application, to meet water-quality based limits. Coeur applied for an NPDES permit to discharge wastewater based on Alternative D. Coeur has gained approval to begin construction and opera- 302a tion of the Kensington Mine Project from the USFS, the USACE, and the State of Alaska, whose consent or authorization is necessary. Coeur has demon- strated their ability to implement treatment options (such as reverse osmosis for outfall 002) that will en- able them to meet permit limits. Receiving Waters The permit authorizes discharges through three outfalls. Outfall 001 discharges mine water to Sherman Creek, and is located at latitude 58° 52' 04" North and longitude 135° 06' 55" West. Outfall 002 will discharge from the TSF to East Fork Slate Creek at latitude 58° 49' 58" North and longitude 134° 57’ 58" West. Outfall 003 will discharge treated domestic wastewater to Lynn Canal at latitude 58° 51' 58" North and longitude 135° 8' 28" West. East Fork Slate Creek and Sherman Creek are designated by the State as protected for water supply (drinking, culinary, and food processing; agricultural irrigation and stock watering; aquaculture; and in- dustrial); contact and secondary recreation; and growth and propagation of fish, shellfish, other aquatic life, and wildlife (18 ACC 70.020(2)). Lynn Canal is protected for marine water supply (aquacul- ture, seafood processing and industrial); water recreation (contact and secondary); growth and propagation of fish, shellfish, other aquatic life, and wildlife; and harvesting for consumption of raw mol- lusks or other raw aquatic life. Description of Discharges Outfall 001 Outfall 001 represents the discharge from set- tling facilities into Sherman Creek. Inflows to the sediment ponds include treated mine drainage from 303a mine dewatering operations and runoff from waste rock piles and other disturbed areas in the Sherman Creek drainage. The sediment pond has two cells. Stormwater runoff from waste rock and disturbed areas is routed to Cell 1 via a riprap lined spillway, which is sized to handle runoff from a 100-year, 24- hour precipitation event. A spillway, notched in the center berm, allows flow from Cell 1 to Cell 2. Cell 2, which is designed to treat water from mine dewater- ing operations and high flows from Cell 1, has been conservatively designed to hold settled solids for the life of the mine. Discharge from Cell 2 to Outfall 001 occurs through a perforated decant pipe with a de- sign capacity to handle the 10-year, 24-hour storm event. Discharge flows from Outfall 001 will initially increase due to increased mine development area and will vary over time due to stormwater runoff. Coeur estimates the rate of mine dewatering to generally range from 1.33 and 2.45 cubic foot per second (cfs). All of the flow will be collected in sumps within the mine where initial settling will occur. Mine drainage will be pumped to the mine water treatment system for metals precipitation and filtra- tion. Settled solids will be added to tailings that are backfilled into the mine. Filter backwash will be re- cycled to the underground mine water treatment system. Outfall 002 Outfall 002 will discharge water from the TSF to East Fork Slate Creek. The natural lake basin of Lower Slate Lake and a constructed retention em- bankment at the outlet of the lake will form the TSF. TSF inflows include tailings slurry from mill opera- tions, precipitation that falls onto the lake, storm water runoff from upland areas adjacent to the TSF, 304a and flows from Mid-Lake East Fork Slate Creek (if the flows are too high for the diversion to accommo- date). The upstream flow in East Fork Slate Creek will be collected and transferred to a 20-inch diver- sion pipeline. Tailings slurry will flow by gravity from the mill to the TSF in a 3.5-mile pipeline. The pipeline will be double-walled high density polyethylene (HDPE) and/or steel. The tailings slurry will be discharged into the TSF through perforations in a submerged portion of the tailing delivery pipeline. The pipeline will be operated so that a portion of the perforated segment is always above the bottom of the TSF, al- lowing the tailings to flow freely from the pipe. The average slurry throughput to the TSF is pro- jected to be 354 gpm with an average solids content of 55 percent by weight (i.e., the water component of the slurry will be approximately 247 gpm). A portion of the slurry water will be entrained in the tailings and will be unavailable for recycle. Coeur will recycle an average of 100 gpm out of the TSF back to the mill. Coeur initially proposed to discharge effluent via Outfall 002 without treatment other than best man- agement practices (BMPs) to enhance settling. However, water quality modeling indicated that total suspended solids (TSS) limits may not be achieved without additional treatment. In addition, back- ground levels of aluminum in East Fork Slate Creek and Lower Slate Lake occasionally exceed the permit limits. As a result, Coeur amended its NPDES per- mit application to incorporate a reverse osmosis (RO) treatment system into the TSF design. The RO sys- tem will reduce levels of both aluminum and TSS to below permit limits and provide additional removal 305a of other pollutants. A maximum total of 1,100 gpm is authorized to be discharged out of Outfall 002. Outfall 003 The discharge of treated domestic wastewater for the Kensington Mine camp was previously permitted for use during exploration, construction and produc- tion. The current project anticipates the use of the camp through exploration and construction. No per- manent camp is proposed for the site during the operation phase of the project. Domestic wastewater will be treated and discharged from Outfall 003 to Lynn Canal. The average flow for the plant during construction is estimated at 30,000 galions per day (gpd), or 20.8 gpm, based on sizing to accommodate 300 people. Endangered Species Act (ESA) Section 7(a)(2) of the Endangered Species Act (ESA) requires Federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) and the Na- tional Marine Fisheries Service (NMFS), as appropriate, to ensure that their actions do not jeop- ardize the continued existence of species listed as threatened or endangered under ESA, or destroy or adversely modify their critical habitat. Through the NEPA process, EPA obtained a list of threatened and endangered species. On June 21, 2004, EPA sent a copy of the draft NPDES permit and Fact Sheet to NMFS and USFWS. In the Fact Sheet, EPA stated we do not expect the discharges from the facility, which comply with the require- ments of the permit, to adversely affect endangered species. On November 17, 2004, the U.S. Forest Ser- vice and the U.S. Army Corps of Engineers sent a copy of the Biological Assessment/Biological Evalua- 306a tion (BA/BE) to NMFS and requested initiation of formal consultation. NMFS issued a final Biological Opinion (BO) on March 18, 2005. The BO did not in- clude any specific conservation recommendation applicable to the NPDES permit issuance. Essential Fish Habitat (EFH) Section 305(b) of the Magnuson Stevens Fishery Conservation and Management Act of 1996 requires Federal agencies to consult with NMFS when any ac- tivity proposed to be permitted, funded, or undertaken by a federal agency may have an adverse effect on designated Essential Fish Habitat (EFH). As stated in the Fact Sheet, EPA has determined that the issuance of the permit is not likely to have an adverse effect on EFH in the vicinity of the dis- charge. Effluent limitations have been incorporated in the permit based on criteria considered to be pro- tective of overall water quality in East Fork Slate Creek, Sherman Creek, and Lynn Canal. National Historic Preservation Act (NHPA) The USFS completed a cultural resource survey of the area of potential effect (APE) for the Kensing- ton Gold Project in 2003, in compliance with the requirements of Section 106 of the National Historic Preservation Act (16 U.S.C. 470 et seq). The USFS sent determinations of eligibility of 43 historic sites within the APE to the State Historic Preservation Office for concurrence. Additionally, Coeur, the Alaska State Historic Preservation Office, and the Tongass National Forest entered into a Memoran- dum of Agreement (MOA) on November 29, 2004 to ensure compliance with Section 106 of the NHPA during mine construction, operation, and closure. 307a Coastal Zone Management Act (CZMA) The State of Alaska, Office of Project Manage- ment and Permitting (OPMP), completed its review of the Kensington Gold Project for consistency with the Alaska Coastal Management Program (ACMP) on April 25, 2005. OPMP found the project, including the discharge of pollutants such as treated domestic wastewater and treated non-domestic wastewater from the Kensington Mine, to be consistent with the ACMP. Wetlands (Executive Order 11990) Wetlands throughout the project area would be affected by construction and operations. Section 404 of the Clean Water Act authorizes the U.S. Army Corps of Engineers to issue permits for activities that would result in the placement of dredge or fill material in waters of the U.S., including wetlands. Before a permit can be issued, Section 404(b)(1) Guidelines require that projects avoid impacts to the extent possible, minimize impacts that cannot be avoided, and provide compensatory mitigation for impacts that occur. Alternative D is estimated to im- pact a total of 61.7 acres of U.S. waters, including 41.5 acres of wetlands filled, 20 acres of open water filled, and 0.2 acres of marine waters filled (USACE ROD, June 17, 2005). The Corps, in their CWA 404 permit and Record of Decision, determined Alterna- tive D was least environmentally damaging based on total wetland acreages of impact. Floodplains (Executive Order 11988) The Kensington Gold Project is not located within floodplains. | 308a Environmental Justice (Executive Order 12898) EPA's issuance of the NPDES permit will not re- sult in disproportionate adverse human health or environmental effects to minority or low-income communities. Tribal Consultation and Coordination (Execu- tive Order 13175) On January 23, 2004, EPA sent letters to Chilkat (Klukwan) Village, Chilkoot Indian Association, Douglas Indian Association, and Tlingit and Haida Central Council informing the Tribes that the pre- liminary permit will be sent for tribal review. EPA also invited the Tribes to initiate formal government- to-government consultation with EPA in developing the final draft permit prior to public release. EPA transmitted the preliminary draft permit and draft Fact Sheet to the Tribes on April 8, 2004. EPA re- ceived no comments in response. Each Tribe also received a copy of the draft permit and Fact Sheet at the start of the public comment period on June 21, 2004. EPA did not receive any comments from these Tribes. MITIGATION MEASURES Section 2.5 and Tables 2-6 and 2-7 of the FSEIS identifies potential mitigation and monitoring meas- ures required as part of Alternative D during construction, operation, and reclamation. Additional mitigation measures have been developed as part of stipulations, special conditions, monitoring require- ments of other Federal and State permits and authorizations to ensure that environmental protec- tion is being achieved. Alternative D also includes the construction of a reverse osmosis treatment system to treat the TSF 309a effluent water. The RO system would ensure compli- ance with permit limits for total suspended solids and metals. The treatment plant effluent would dis- charge into the diversion pipeline, which would flow to East Fork Slate Creek below the TSF dam. Once tailings disposal is complete, the tailings would be capped to isolate any toxic contaminants unless Coeur could demonstrate to the satisfaction of EPA that tailings are not toxic. Although the FSEIS refers to a cover of approximately 4 inches of native material, the cap design (e.g., horizontal and vertical dimensions, types of materials, placement methods, etc.) will depend on the evaluation of the test results and the site characterization at closure. The U.S. Army Corps of Engineers, in its CWA 404 permit, requires a special condition for Coeur to use nontoxic chemical flocculent to enhance the deposition of suspended particles and reduce turbid- ity levels in the Lower Slate Lake disposal site. MONITORING Under Section 308 of the Clean Water Act and 46 CFR 122.44(i), EPA must require a discharger to conduct monitoring whenever necessary to determine compliance with effluent limitations and assist in the development of effluent limitations. The permit con- tains both effluent and receiving water (ambient) monitoring requirements. The data from ambient mcouitoring is important for determining whether ef- fluent limits in the proposed permit are adequate, and may be necessary for the development of water quality-based effluent limitations when the permit is reissued. The permit also requires that Coeur pre- pare a Quality Assurance Plan for all monitoring. ara 310a Outfall Monitoring To ensure compliance with the effluent limita- tions, Coeur is required to monitor the discharges from Outfalls 001, 002, and 003 for metals, toxicity, and other parameters on a routine basis (See Permit Tables 1-4). The permit also requires that the per- cent removal for BOD and TSS be calculated on a quarterly basis for Outfall 003. This would entail measuring the influent as well as the effluent for these parameters. Receiving Water (Ambient) Monitoring The permit requires Coeur to conduct ambient monitoring in Sherman Creek, Slate Creek, and Johnson Creek. Water Column Monitoring The permit requires monthly water column monitoring for metals and other parameters at locations in Sherman Creek, Slate Creek, and Johnson Creek. The Sherman Creek and Slate Creek monitoring will provide data to assess the characteristics of the receiving stream below the discharges. Monitoring in Johnson Creek will be used to determine whether the process areas are affecting conditions in the creek. dimen oni in The permit requires annual sediment monitoring for metals and other parameters and annual tox- icity testing to assess the effect of mine effluent on sediments within the receiving streams. The permit requires sampling in Sherman Creek at a location immediately downstream of Outfall 001 and at another location below the fish barrier. Additional sampling is required at a location be- 3lla low Outfall 002 in East Fork Slate Creek and in lower Slate Creek below the fish barrier. Sedi- ment sampling is also required at a location in upper Johnson Creek immediately below the process area. Biological Testing and Monitoring of Aquatic Resources Benthic Invertebrates — The permit requires benthic invertebrates monitoring using methods and locations established in baseline surveys in Sherman and Sweeny creeks. In Slate and John- son Creeks, Coeur will define reaches to be sampled that are representative of potential im- pacts from Outfall 002 and the process area, respectively. Each reach will be delineated for all possible sampling sites. Every third or fourth sampling site will be sampled until a total of 6 samples are collected. Sampling will be con- ducted once during the construction period and annually thereafter. Resident Fish — Abundance and condition of Dolly Varden char in Sherman, Slate, and John- son creeks will be monitored using annual snorkel observations or electrofishing techniques comparable to those employed in previous base- line studies. Surveys will be conducted in: upper, middle, and lower Sherman Creek; East Fork Slate Creek and Lower Slate Creek; and Johnson Creek. These surveys will focus on fish greater than 25 mm. Data to be derived from the surveys include: 1) population estimates by species, habi- tat type, and stratum, and 2) condition factor by stratum. Anadromous Fish — Annual surveys of spawning salmon in Sherman, Slate and Johnson creeks 312a will be conducted to assess the size of the es- capement. Surveys will consist of weekly stream counts throughout the spawning season docu- menting the distribution of salmon within the surveyed areas. Outmigrating juvenile pink salmon from the Sherman, Slate, and Johnson creek drainages will be sampled during the spring following each year of adult counts. Quan- titative methods, such as screw trap or inclined plane trap will be used to estimate the relation- ship between adult escapement and _ fry protection. The quality of spawning substrate used by pink salmon will be monitored to detect possible changes caused by potential introduction of fine sediments into lower Sherman, Slate, and John- son creeks. Sediment samples will be collected in July prior to spawning activity. Aquatic Vegetation — Annual visual surveys of visual impacts of aquatic vegetation in Sherman, Slate, and Johnson creeks will be conducted dur- ing the summer months. RECLAMATION Section 2.3.19 of the FSEIS discusses the general reclamation procedures for all the alternatives and summarizes how major mine components would be reclaimed. A more detailed closure and reclamation plan specific to Alternative D is presented in Appen- dix 1 of the Final Plan of Operations. BEST MANAGEMENT PRACTICES (BMP) PLAN Section 402 of the Clean Water Act and federal regulations at 40 CFR 122.44(k)(2) and (3) authorize EPA to require Best Management Practices (BMP) Plan in NPDES permits. The BMP Plan will be used 313a to control the discharge of toxics or hazardous pol- lutants by way of spillage or leaks, sludge or waste disposal, and drainage from raw material storage. The BMP Plan must be maintained at the mine facil- ity and amended whenever there is a change in the facility or in the operation of the mine which materi- ally increases the potential for an _ increased discharge of pollutants. Annually, the BMP Plan must be reviewed and certified. PUBLIC INVOLVEMENT The public involvement process is presented in Section 1.5 of the FSEIS. The following is a chronol- ogy of the public involvement process for the FSEIS and NPDES permitting process: September 13, 2002 The Notice of Intent (NOD was published in the Federal Regis- ter and announced the USFS' intention to develop an SEIS under NEPA for the Kensing- ton Gold Project. The NOI initiated the 30-day public scoping period. Sept. 19 & 21,2002 Scoping open houses held in Juneau and Haines, respec- tively. January 23, 2004 Draft SEIS released to the pub- lic for review and comment. Feb. 24 & 26,2004 Public meetings on the Draft SEIS were held in Juneau and Haines, respectively. June 21, 2004 EPA, U.S. Army Corps of Engi- neers, and the State of Alaska issued draft permits and draft 31l4a decisions/authorizations (draft NPDES permit, CWA 404 pub- lic notices, draft State CWA 401 certifications, draft State decisions and authorizations) for public comment. July 26 & 27,2004 Public hearings on draft Fed- eral and State permits and decisions/authorizations were held in Juneau and Haines, re- spectively. CONCLUSIONS Based on the NPDES permit application received by EPA, Coeur's demonstration that the project can meet permit limits, and the findings of the FSEIS, EPA is issuing an NPDES permit, with discharge limits, for Alternative D. The permit authorizes treated mine water discharges from Outfall 001 to Sherman Creek, treated TSF discharges from Outfall 002 to East Fork Slate Creek, and treated domestic wastewater discharge during construction from Out- fall 003 to Lynn Canal. The final NPDES perm is included in Appendix A. Further information regarding this Record of De- cision (ROD) may be obtained by contacting: Hanh Shaw NEPA Compliance Coordinator U.S. Environmental Protection Agency 1200 Sixth Avenue, OWW-130 Seattle, WA 98101 E-mail: shaw.hanh@epa.gov Telephone: (206) 553-0171 Facsimile: (206) 553-0165 315a Approving Official: /S/ Michael F. Gearheard 6/28/2005 Michael F. Gearheard, Director Office of Water and Watersheds 316a Creek Cove Alternative A Al B Cc D (Coeur’s Proposed i Action) Alternative 1998 Same as A Recycle | Same as B | Same as B Description | permitted | w/reduced process | except with| except with project mining rate water; no recycle | treatment no treat- of TSF ment of effluent by TSF efflu- reverse ent osmosis and cap- ping of the sediment post- operation Tailings DTF DTF Lower Lower Lower Disposal Slate Lake | Slate Lake | Slate Lake TSF TSF TSF 20 million | 4.5 million | 4.5 million | 4.5 million | 4.5 million tons; 25% tons; 40% | tons, 40% | tons; 40% | tons; 40% backfilled | backfilled | backfilled | backfilled | backfilled Diversion | Stormwater | Stormwater No Ditch di- Pipeline diversion diversion | diversion version diversion around DTF | around DTF around around TSF-would TSF - require would re- damming | quire dam of Upper | in Mid-lake Slate Lake | East Fork and raising | Slate Creek water level 20 ft. to al- low gravity flow Access/Marine| On-site Same as A | No on-site | Same as B | Same as B Facilities housing: housing; except workers daily crew | daily crew transported shuttle shuttle by helicop- between | service be- ter (12 RT marine |tween Echo per week), terminals | Cove and marine at Cascade Slate terminal at Point and Creek Comet Slate Cove; no Beach Creek Cove; landing (4 RT per | craft ramp day) at Slate DTF - drystack tailings facility TSF - tailings storage facility RT - round trip 318a This permit and@ the authorization to discharge shall expire at midnight, August 31, 2010 The permittee shall reapply for a permit reissuance on or before March 1, 2010, 180 days before the ex- piration of this permit if the permittee intends to continue operations and discharges at the facility be- yond the term of this permit. Signed this 28th day of July 2005. /s/Michael Gearheard Michael Gearheard Director, Office of Water & Watersheds Region 10 U.S. Environmental Protection Agency 319a TABLE OF CONTENTS I iii ccciitcentndaendhipndiitipeenictintinvessreeseses 1 4 LIMITATIONS AND MONITORING ti caiciiicices tineatteniiciniesenvecoscoees 3 A. Effluent Limitations and Monitoring TUE chichardibhiniainadipniadinainilinandeiennenenves 3 B. Effluent Limitations and Monitoring TEE iibddciddiibiiciadiiiabii i icaiineniiticninnennincanee 7 C. Effluent Limitations and Monitoring Requirements - Outfall 003 ..........00000000... 10 D. Whole Effluent Toxicity Testing GR IID Sic cestenesnencsscsescesseses 11 E. Receiving Water Monitoring...................... 15 F. Quality Assurance Plan (QAP).................. 20 I. BEST MANAGEMENT PRACTICES TT iiiaidi bi ditailindidaninliepigidadieseianenieinsereensetosn 21 TE tiiehickindiisibdunntianintedeninipinieesioessasesceens 21 B. Development and Implementation EEE REE SE ce De 21 ELS TEES Ee ee 21 D. Elements of the BMP Plan ........................ 22 ELS SLO OE 23 F. BMP Plan Modification ............................. 23 Ill. MONITORING, RECORDING AND REPORTING REQUIREMENTS ................... 24 A. Representative Sampling (Routine and Non-Routine Discharges).................... 24 B. Reporting of Monitoring Results ............... 24 C. Monitoring Procedures.......................2..00008 25 D. Additional Monitoring by Permittee ......... 25 cc ccccceccreescesersccsccenceses 25 F. Retention of Records .............................0000. 25 G. Twenty-four Hour Notice of Noncom- STEIGER 25 H . Other Noncompliance Reporting............... 26 VI. 320a I. Changes in Discharge of Toxic Sub- I dtiiniiticielnisunitiidineeseninendpnreentansescccnsoneses J. Compliance Schedules ........................:s00ee COMPLIANCE RESPONSIBILITIES............ EES A I Penalties for Violations of Permit a D> i ia rateenibonnbiniiidl I i aie Proper Operation and Maintenance.......... Bypass of Treatment Facilities.................. IT Ce ee cise srindnctapeipimtennceenninnnenden ceric cniindcdisadeaniaiianee Anticipated Noncompliance ....................... EN EE LIE OED occccseseccesesessccncosseseoes ee ic acc cinceosasnacainiinn Duty to Provide Informatio ....................... Se IINIID cocccccccssccocnccesastsrnssececenents Signatory Requirements ............................ Availability of Reports .....................::ceeeeee Inspection and Entry ..............cccccccscccscssses cas llsccciiaailbaainessdiatinieelessinilill Ea iciactcicescesiidiriettsinicenimmnntannaninaiiiial CM MOMNOODPOSRDONME 321la I. LIMITATIONS AND MONITORING REQUIREMENTS During the effective period of this permit, the Per- mittee is authorized to discharge pollutants from the outfalls specified herein to Sherman Creek, East Fork Slate Creek, and Lynn Canal within the limits and subject to the conditions set forth herein. This permit authorizes the discharge of only those pollut- ants resulting from facility processes, waste streams, and operations that have been clearly identified in the permit application process. A. Effluent Limitations and Monitoring - Outfall 001 The permittee must limit and monitor dis- charges from outfall 001 as specified in Table 1, below. All figures represent maximum effluent limits unless otherwise indicated. The permittee must comply with the effluent limits in the tables at all times unless otherwise in- dicated, regardless of the frequency of monitoring or reporting required by other pro- visions of this permit. 1. Table 1 Table 1 - Outfall 011 Effluent Limitations _ and Monitoring Requirements Effluent Monitoring Sasdnces Limitations Requirements , | ae meh . Max. | Avg. Sample | Sample | Sample Parameter CaCOz | Units | Daily | Monthly |Frequency”|Location| Type influent (1) 24 hr Aluminum® — ug/L 143 71 weekly | EMuent | ~ (ED comp. Ammonia, mg/l. 24hr Total — py 4.0 2.0 weekly E come. , 24 hr. Arsenic — ug/L -_- _ monthly VE comp. . , 3 24 hr Cadmium 60sH<100 | ug/L 0.3 0.1 weekly VE comp. 322a Table 1 - Outfall 011 Effluent Limitations and Monitoring Requirements Effluent Monitoring Hardness Limitations Requirements , | 28 mg/L Max. | Avg. Sample | Sample | Sample Parameter’ | CaCO, | Units | Daily |Monthly|Frequency”|Location| Type 24 hr. 100sH<200| ug/L 0.4 02 weekly VE comp. 24 hr. H2200 ug/L 0.7 0.4 weekly VE comp. 3 » 24 hr. Copper 50sH<100 | ug/L 7.3 3.6 weekly VE comp. 24 hr. 100SH<200| ug/L 14.0 70 weekly VE comp. 2 24 hr. H2200 ug/L 26.9 13.4 weekly VE comp. Chromium, > 24 hr. Total mt ug/L ‘a 6 weekly Ve comp. M4 4 —_ * 24 hr. Chromium VI _ ug/L 16 8 VE comp. . 24 hr. Iron _ ug/L 1700 800 weekly VE comp. 3 » 24 hr. Lead 60sH<100 | ug/L 2.2 LI weekly VE comp. 24hr 100SH<200 | ug/L 5.2 2.6 weekly VE comp. . 24 br. Hz200 ug/L 12.6 6.3 weekly VE comp. , 24 hr. Mangancsc — ug/L _ weekly VE comp. 5 24 hr. Mercury” _ ug/l. | 0.02 0.01 weekly VE pono Nickel? 50sH<100 | ug/l. | 477 | 228 weekly ve «=| C24 Br. comp. . 24hr 100sH<200| ug/L 85.7 42.7 weekly VE comp. 24 hr. H2200 ug/L 154.0 76.8 weekly VE comp. , mg/L 24 hr. Nitrate -- as N 20 10 weekly E comp. — . 24 hr. Selenium — ug/L 8.2 41 weekly VE comp ; . 24hr Silver® 50s11<100 | ug/L. 12 06 weekly VE comp. > 24 hr. 100sH<200! ug/L 4.1 2.0 weekly VE comp. ' , 24hr H2200 ug/L 13.4 6.6 weekly VE come. ‘Zinc® 60sH<100 | ug/L 66.6 33.2 weekly § VE a6 be. l ; : L a. 2 323a Table 1 - Outfall 011 Effluent Limitations and Monitoring Requirements Effluent Monitoring Slasdness Limitations Requirements hb mg/l. Max. Avg. Sumple Sample | Sample Parameter CaCOy | Units | Daily |Monthly|Frequency”|Location| Type . 24 hr 100sH<200| ug/L 119.8 59.7 weekly VE comp. Hz200 | ug/L | 2156 | 107.5 | weekly ms (| CU. CcOrDp. _ 24 hr. TDS = mg/L 1000 1000 weekly E oom. TDS anjons/ 24 hr. cations Pa me/L. os = quarterly E comp. 24 hr. Sulfate - rog/L 200 200 weekly E comp. bidi = , . a — | NTU |scePermit Part 1.A5.| weekly E grab Turbidity, nN natural condi- _ NTU — =_ weekly — grab ground tion mg/L down- Hardness _ CaCO, _ _ weekly pe-vanacortl grab pH = 8.U. |see Permit Part 1.A.4.| Continuous E Recorder ‘ : 24 hr. TSS _— mg/L 30 20 daily VE comp. Flow — gpm — _ Continuous VE Recorder Temperature — °C - -- Weekly E grab Dissolved » Oxygen — mg/L -- -- Weekly E grab Chronic Whole 94 hr Effluent _ TU, 1.6 1.1 Monthly E Toxicity’ (WET) — ‘. 2- Parameters must be analyzed and reported as tota) recoverable unless otherwise noted Weekly sampling shall occur on the same day of each week, unless the Permittee can document that sampling could not be performed due to extreme conditions. In such cases, a detailed explanation of the reason sampling could not be performed shal! be prepared and kept with the analytical results for that day Reporting of a maximum daily limit violation is required according to Permit Part II1.G Chromium VI (Cr V1) must be analyzed during the next sampling event when results are received showing 4 tota] chromium measure exceeding 11 ug/L - the sample holding time for chromuum V1 is 24 hours Cr VI must be analyzed and reported as dissolved Mercury must be analyzed and reported as total. This monitoring shal! include a standard and complete suite of thase cations and aniona contributing to TDS including but not lumited to boron (B), sodium (Na), potassium (K), calcium (Ca), magnesium (Mg), Nuoride (F), chloride (Cl), sulfate (SO4), total alkalinity, hardness, pH, and electrical conduc- tivity See Permit Part 1.D. for whole effluent toxicity testing requrements 324a 2. Until underground activities commence, the following monitoring frequencies shall apply. These frequencies shall also apply during a long term shut down of the mine. These frequencies shall be implemented af- ter a 6 month closure period. TABLE 2 Monitoring Requirements for Outfall 001 (During Non-Mining Periods) Monitoring Requirement Effluent Paramcter' Units Sampling Sample Frequency Type Aluminum ug/L Quarterly Grab Ammonia, Total ug/L Quarterly Grab Arsenic ug/L Quarterly Grab Cadmium ug/L Quarter’ Grab Copper ug/L Quarterly Grab Total Chromium ug/L Quarterly Grab Iron ug/L Quarterly Grab Lead ug/L Quarterly Grab Mercury” ug/L Quarterly Grab Nickel ug/L | Quarterly _ Grab Nitrate mg/L _ Quarterly Grab Selenium ug/L Quarterly Grab Silver ug/L Quarterly Grab Zinc ug/L Quarterly Grab Total Dissolved Solids mg/L Quarterly Grab TDS anions/cations mg/L Annually Grab Sulfate mp/l. Quarterly Grab Hardness® mg/L Monthly - Instream Grab pH* $.u. : Quarterly Grab Total Suspended Solids _mg/L 4 Daily - Grab Flow MGD Continuous Recorder Temperature a Quarterly Grab WET, Chronic Tu. Annually Grab 1 The Permittee shall conduct analysis for total recoverable and dissolved. 2 Mercury shall be analyzed as total. 3. The Permittee shall sample the receiving water hardness downstream of the discharge. 4 The Permittee shall monitor and report the number of pH excursions out- side the range of 6.5 to 8.5 Standard Units {5 Chronic toxic units (See Definitions). 325a . The permittee must not discharge any floating solids, visible foam in other than trace amounts, or oily wastes that produce a sheen on the surface of the receiving wa- ter. . The pH must not be less than 6.5 standard units (s.u.) nor greater than 8.5 Standard units (s.u.). During continuous monitoring required in Table 1, the Permittee shall monitor the total time outside the range for the month, the length of each excursion and the number of pH excursions outside the range of 6.5 to 8.5 Standard Units (s.u.). The Permittee shall report the total time outside the range for the month as well as the number of individual excursions which exceed 60 minutes. . The turbidity measured in nephelometric turbidity units (NTU) must not be more than 5 NTUs above the natural condition. The natural condition sample taken from Sherman Creek must be taken upstream of the discharge point within an hour of the effluent sample. . The permittee must collect effluent sam- ples from the effluent stream after the last treatment unit prior to discharge into the receiving waters. . Minimum Levels. For all effluent monitor- ing, the permittee must use analytical methods that can achieve a minimum level (ML) less than the effluent limitation, if possible. For parameters that do not have effluent limitations, the permittee must 326a use methods that can achieve MLs less than or equal to those specified in Table 6 (Permit Part I.F.1.). 8. Chromium VI has an average monthly ef- fluent limit that is not quantifiable using EPA approved or approvable analytical methods. EPA will use 10 ug/L (the ML for EPA Method 218.4) as the compliance evaluation level for this parameter. 9. For purposes of reporting on the DMR, for a single sample, if a value is less than the MDL, the permittee must report "less than {numeric value of the MDL}" and if a value is less than the ML, the permittee must re- port "less than {numeric value of the ML)." For purposes of calculating monthly aver- ages, zero may be assigned for values less than the MDL, the {numeric value of the MDL} may be assigned for values between the MDL and the ML. If the average value is less than the MDL, the permittee must report "less than (mumeric value of the MDL)" and if the average value is less than the ML, the permittee must report “less than {numeric value of the ML}." If a value is greater than the ML, the permittee must report and use the actual value. B. Effluent Limitations and Monitoring - Outfall 002 The permittee must limit and monitor dis- charges from outfall 002 as specified in the Table 3, below. All figures represent maximum effluent limits unless otherwise indicated. The permittee must comply with the effluent limits in the table at all times unless otherwise indi- 327a cated, regardless of the frequency of monitor- ing or reporting required by other provisions of this permit. 1. Table 3 Table 3 - Outfall 002 Effluent Limitations and Monitoring Requirements | Effluent Monitoring oe a idettations Requirements Maximum | Average| Sample Sample Daily Monthly |Frequency’} Type Aluminum ug/L 143 71 weekly |24 hr. comp. Ammonia, Total pr 3.5 1.7 weekly Grab Arsenic ug/L — -- monthly [24 hr. comp. Cadmium’ ug/L 0.2 0.1 weekly [24 hr. comp. Copper*® ug/L 3.8 1.9 weekly /|24 hr. comp Chromium, Total* | ug/L = _ weekly [24 hr. comp. Chromium VIi** ug/L 16 8 — 24 hr. comp. Iron ug/L 1700 800 weekly [24 hr. comp. Lead* ug/L 0.9 0.5 weekly {24 hr. comp. Mangancse ug/L - weekly (24 hr. comp. Mercury** ug/L 0.02 0.01 weekly /|24 hr. comp. Nickel® ug/L 26 13 weekly |24 hr. comp. Selenium’ ug/L 8.2 4.1 weekly | 24 hr. comp. Silver® ug/L 0.4 0.2 weekly (|24 hr. comp. Zinc? ug/L 37 18 weekly [24 hr. comp. TDS mg/L 500 500 weekly [24 hr. comp. arceraggga mg/L — quarterly [24 hr. comp. Nitrates mg/L | = weekly grab Sulfates mg/1 250 | 250 weekly (24 hr. comp. Turbidity, effluent | NTU | see Permit Part 1.B.4. weekly grab mots natural NTU _ weekly grab pH 8.U. see Permit Part 1.B.3. | Continuous | Recorder TSS mg/l. 20 30 daily 24 hr. comp Outfall Flow gpm 1,100 — Continuous | Recorder Temperature °C a — weekly grab nen mel weekly | — grab eee Stee TU, 1.6 11 Monthly (24 hr. comp. 328a Table 3 - Outfall 002 Effluent Limitations and Monitoring Requirements 1 - 2. Parameters must be analyzed and reported as total recoverable unless oth- erwise indicated. Weekly sampling shall occur on the same day of each week, unless the Per- mittee can document that sampling could not be performed due to extreme conditions. In such cases, a detailed explanation of the reason sampling could not be preformed shall be prepared and kept with the analytical re- sults for that day. Reporting of a maximum daily limit violation is required according to Per mit Part III.G. - Cr VI must be analyzed during the next sampling event when results are received showing a total chromium measure exceeding 11 ug/L - the sample holding time for Cr VI is 24 hours. Cr VI must be analyzed and reported as dissolved - Mercury must be analyzed and reported as total. - See Permit Part I.D. for whole effluent toxicity testing requirements. 2. The permittee must not discharge any floating solids, visible foam in other than trace amounts, or oily wastes that produce a sheen on the surface of the receiving wa- ter. The pH must not be less than 6.5 standard units (s.u.) nor greater than 8.5 standard units (s.u.). The Permittee shall monitor the total time outside the range for the month, the length of each excursion and the number of pH excursions outside the range of 6.5 to 8.5 Standard Units (s.u.). The Permittee shall report the total time outside the range for the month as well as the number of individual excursions which exceed 60 minutes. The turbidity measured in nephelometric turbidity units (NTU) must not be more than 5 NTUs above the natural condition. The background level for turbidity shall be measured at a point upstream of the dis- 329a charge point in the diversion around the TSF. . The permittee must collect effluent sam- ples from the effluent stream after the last treatment unit prior to discharge into the receiving waters. . Minimum Levels. For all effluent monitor- ing, the permittee must use analytical methods that can achieve a minimum level (ML) less than the effluent limitation, if possible. For parameters that do not have effluent limitations, the permittee must use methods that can achieve MLs less than or equal to those specified in Table 6 (Permit Part I.E.1.). . Chromium VI has an average monthly ef- fluent limit that is not quantifiable using EPA approved or approvable analytical methods. EPA will use 10 ug/L (the ML for EPA Method 218.4) as the compliance evaluation level for this parameter. . For purposes of reporting on the DMR, for a single sample, if a value is less than the MDL, the permittee must report "less than {numeric value of the MDL)" and if a value is less than the ML, the permittee must re- port “less than {numeric value of the ML}." For purposes of calculating monthly aver- ages, zero may be assigned for values less than the MDL, the {numeric value of the MDL} may be assigned for values between the MDL and the ML. If the average value is less than the MDL, the permittee must C. Effluent Limitations 330a report "less than {numeric value of the may and if the average value is less than the ML, the permittee must report “less than {numeric value of the ML}.” If a value is greater than the ML, the permittee must report and use the actual value. and Monitoring Requirements - Outfall 003 The permittee must limit and monitor dis- charges from outfall 003 as specified in the Table 4, below. All figures represent maximum effluent limits unless otherwise indicated. The permittee must comply with the effluent limits in the table at all times unless otherwise indi- cated, regardless of the frequency of monitoring or reporting required by other pro- visions of this permit. 1. Table 4: Table 4 Effluent Monitoring Pinetes Units ' Limitations Requirements Maximum); Avg. Weekly Sample Sample Daily Monthly Avg. Frequency Type Flow gpd 60,000 | 30,000 — Daily Recording Biochemi- cal Oxygen . ‘ . . Semend mg/L 60 30 45 Weekly Grab (BOD;,) - > = | 7 Total | Suspended 2 , Solids mg/L 60 30 45 Weekly Grab | (TSS) is Te Saoeer Fecal 4/100 150,000 | 100,000 -- Weekly Grab Coliform ml . Chlorine’ mg/L 0.02 _ Weekly Grab pH $.U. See Permit Part I.C.3. Weckly Grab 1 - Monitoring required only if chlorine is used. See Permit Part I.C.6., below. 33la 2. The permittee must not discharge any floating solids, visible foam in other than trace amounts, or oily wastes that produce a sheen on the surface of the receiving wa- ter. . The pH must not be less than 6.5 standard units (s.u.) nor greater than 8.5 standard units (s.u.). . Influent (prior to treatment) measures of BOD, and TSS shall be done on a quarterly basis. From this information, percent re- moval shall be calculated and reported on the DMR in January, April, July, and Sep- tember for the previous quarter. Percent removal shall meet or exceed 85% for both 332a APPENDIX P DECLARATION OF JOE KAHKLEN JOE KAHKLEN declares under penalty of per- jury as follows: 1. My name is Joe Kahklen. I reside at 800 F Street, Unit D6, Juneau, Alaska, 99801. I am the Chairman of the Board of Directors of Goldbelt, In- corporated ("Goldbelt"). I am making this declaration in support of the Motion of Goldbelt to intervene as a defendant in this litigation. 2. lam a Tlingit Indian. The name Tlingit trans- lates roughly to "the real people." My traditional name is Kokeesh, my moiety is Raven, and my clan is Dog Salmon. | was the first CEO and President of Goldbelt when it was formed in 1974, and I have been active in corporate affairs ever since. 3. Berners Bay and surrounding lands, including Cascade Point and the lands on which the Kensing- ton Gold Project will be developed are within the aboriginal territory of the Auk Kwaan Tlingit, whose descendants are the modern day shareholders of Goldbelt. 4. Berners Bay is an important subsistence hunting and fishing area for Juneau Tlingit. Goldbelt would not be a party to any development that signifi- cantly impacted use of the area for subsistence activities. Goldbelt and its shareholders have par- ticipated in the process of assessing the environ- 333a mental impacts of the Kensington project - including the impacts of constructing the Cascade roint dock and transporting mine workers across Berners Bay. Goldbelt and Coeur have agreed to extraordinary mitigation measures to insure that the resources of Berners Bay will not be harmed. Significantly, the plaintiffs do not challenge the adequacy of the Sup- plementa] Environmental Impact Statement, which concluded that with the mitigation required by the Forest Service's decision, the impacts of the project on Berners Bay will be minimal. 5. In the years since first contact with non- Native cultures, Tlingit lands, including Berners Bay, were encroached upon and wrongfully appro- priated by individuals in populated areas, such as Juneau, and by the United States government for in- clusion in the Tongass National Forest. The Tlingit received partial compensation for the loss of their lands as a result of a judgment issued by the United States Claims Court in 1968. 6. In 1971, Congress further addressed the issue of Alaska Native land claims by enacting the Alaska Native Claims Settlement Act ("ANCSA"), which granted some 45 million acres of land and $1 billion as compensation for the extinguishment of Native aboriginal title. In order to receive benefits under ANCSA, Alaska Natives were required to organize as corporations under Alaska law. Land entitlements were organized primarily around traditional village sites, with village corporations receiving surface es- tate and regional corporations the subsurface estate. Because the territory of Tlingit in the Juneau area had been subsumed into the City and Borough of Juneau, however, Tlingit in the Juneau area (along with three other communities) were -incorporated 334a under a separate section of ANCSA into so-called “urban corporations," with the right to select 23,040 acres of land in reasonable proximity to their mu- nicipalities. Congress expected that these lands would be selected for their economic potential, which, in Southeast Alaska at the time meant timber. 7. In 1974, the Juneau area Tlingit organized Goldbelt Incorporated, which currently has more than 3,000 shareholders. In due course the Secretary of the Interior made withdrawals of land for selection by Goldbelt, including lands on Admiralty Island within the Admiralty Island National Monument. Environmental groups, including the Sierra Club (which is a plaintiff in this litigation) immediately brought suit challenging the legality of the Admi- ralty Island withdrawals. To avoid the delay and expense of that litigation, in 1979 Goldbelt agreed to exchange its Admiralty Island selections for less sen- sitive lands on the mainland, including approxi- mately 1,000 acres of land on and around Cascade Point on the south shore of Berners Bay. 8. The Berners Bay lands, which have high val- ues because of their easy access from the Juneau road system, are critical to the economic future of Goldbelt and its shareholders. In recognition of this fact, the City and Borough of Juneau has designated portions of Goldbelt's lands near Cascade Point as a "new growth area," and Goldbelt, at great expense, has developed a phased plan for development of the area, beginning with dock facilities at Cascade Point. A dock at this location would have substantial value as a ferry terminus to northern Lynn Canal and the communities of Haines and Skagway, as a service site for fishing vessels, and as an embarkation point 335a for whale watching and other tourism activities, in addition to servicing the Kensington Mine. 9. Having, in effect, forced Goldbelt off of Admi- ralty Island and into Berners Bay and Cascade Point in particular, the same environmental groups, lead by the plaintiffs in this litigation, have bitterly op- posed every effort of Goldbelt to realize any economic benefit from its Berners Bay lands. In 1998, these group successfully opposed Goldbelt's application for a dredge and fill permit to construct a dock at Cas- cade Point. The Corps of Engineers’ decision was based in part on a finding that there was no demon- strated public or economic need for a dock at that time. That requirement is presently satisfied by the inclusion of the Cascade Point marine terminal in the Kensington Gold Project Plan of Operations and the need to ferry workers to the mine site. 10. In 1999, SEACC and the Sierra Club ap- pealed a Forest Service decision authorizing construction of a right-of-way to allow administrative access to Goldbelt's lands at Cascade Point. 11. The marine terminal cannot be constructed without a conditional use permit ("CUP") from the City and Borough of Juneau ("CBJ"). SEACC strenu- ously opposed Goldbelt's application for a CUP. When it became clear that a permit would be granted, SEACC succeeded in having the CBJ Plan- ning Commission and Assembly insert a condition in the CUP that the dock could be used solely to trans- port workers via a single ferry to the Kensington mine site. So conditioned, the CUP was granted on October 15, 2004. 12. In 2003, Goldbelt once again applied for a dredge and fill permit to construct a dock at Cascade Point to serve as a marine terminal for transporting 336a workers to the mine site. Although the 404 permit application was in the name of Goldbeit as the prop- erty owner, the dock is an integral part of the Kensington Gold Project Plan of Operations. The en- vironmental impacts of the dock were considered in the Supplemental Environmental Impact Statement prepared for the Plan of Operations and associated federal permits. On July 15, 2005, the Corps issued a 404 permit for the Cascade Point marine terminal. The Corps has advised Goldbelt, however, that use of the dock for any purpose other than mine worker ferry »perations, as required in Goldbelt's CUP from CBJ, may require re-noticing and amendment of the Corps' permit. Goldbelt has expended considerable time, effort and resources in pursuing a permit for a marine terminal at Cascade Point in reliance on Coeur's plans for the Kensington Mine. 13. As a consequence of SEACC's opposition, Goldbelt's proposed Cascade Point dock is a dedi- cated facility that is only viable if the mine goes into operation. If SEACC, the Sierra Club and Lynn Ca- nal Conservation succeed in invalidating the Plan of Operations and blocking construction of the Kensing- ton Mine, the practical and legal effect will be to block construction of the Cascade Point dock, as well. A recent Op-Ed piece by a representative of plaintiff Lynn Canal’ Conservation (Attachment A) makes it clear that stopping the commute of mine personnel between Cascade Point and Slate Creek Cove is a principal, if indirect, aim of the litigation. SEACC has formally requested the Corps of Engineers to re- consider and deny Goldbelt's 404 permit for Cascade Point on the ground that the dock is dedicated to mine service (thanks to their efforts) and Coeur could transport workers from another site (Yankee Cove) not owned by Goldbelt. Attachment B. 337a 14. In all its proposals for development of the Kensington mine, Coeur Alaska has shown sensitiv- ity to the needs of the Native Community. In 1996, Coeur entered into an agreement with a consortium of Southeast Alaska Native organizations, including Goldbelt that, among other provisions, gives a bid- ding preference to members of the coalition in contracts for construction and servicing the mine. Because Goldbelt is the Native Corporation in closest proximity to the Kensington mine, in 2000, Goldbelt and Coeur entered into a separate agreement con- templating leases of land (including the Cascade Point dock site) and future contracting consideration, including contracting for worker transportation and ferry service across Berners Bay for commuting Coeur employees. Coeur's Plan of Operations, under challenge in this litigation, is premised on use of Cascade Point and ferry service provided by Gold- belt. Thus, the litigation threatens a direct an immediate economic impact to Goldbelt. 15. Coeur has also made commitments for local and Native training and hire. Unemployment and underemployment among Goldbelt shareholders is significantly higher than for non-Natives. Many of the jobs that are available to Goldbelt shareholders are in the seasonal tourism industry, where wages are low and fringe benefits are not customary. The Kensington mine represents the most promising new source of meaningful, well paying jobs with benefits for our shareholders. 16. ‘To summarize, the pending litigation is just the latest in a consistent series of actions by the plaintiffs designed to prevent any and all develop- ment of Goldbelt's lands at Berners Bay. Their efforts to derail the Kensington Mine, if successful, \ 338a will not only kill Goldbelt's dock at Cascade Point, but also will deliver a crushing blow to the hopes of Goldbelt and its shareholders to benefit from the economic prosperity that the mine would bring to the community of Juneau. 17. Because of its historical roots in Berners Bay and its involvement in the permitting process, Gold- belt is in a position to provide the court with information that may not be available to other par- ties. Paragraph 83 of the complaint, for example, contains misleading information concerning the im- portance of Cascade Point as a herring spawning area. Dive surveys performed by Goldbelt and pro- vided to the Corps of Engineers demonstrate that the small amount of herring spawning habitat that will be impacted is marginal. The Alaska Department of Fish and Game reports that Cascade Point is used infrequently for spawning. Because of the impor- tance of the mine to Goldbelt and its shareholders, Goldbelt is also in a unique position to provide the Court with information concerning balancing of the equities. 18. No other party can adequately represent Goldbelt's interests in this litigation. The primary in- terest of the federal agencies and the State of Alaska is in defending the permitting process. They will not be harmed if the mine is enjoined. Coeur's principal interest is in opening and operating the mine. Transportation and housing of employees are sub- sidiary issues. The plaintiffs have argued that. transportation and housing could be accommodated in several ways that would not require a marine terminal at Cascade Point -- such as transportation by helicopter (Alternative A, or the "no action" Alter- native favored by plaintiffs) or use of the permitted 339a dock facility at Yankee Cove outside Berners Bay on Lynn Canal. These alternatives are more costly, less effective to the purposes of the Plan of Operations, and involve significantly higher safety risks. Never- theless, at some point, one oi these alternatives might scem to Cocur preferable to the costs and un- certainty of protracted litigation. DATED this 12th day of October, 2005, at Juneau, Alaska. /s/Joe Kahklen Joe Kahklen 340a APPENDIX Q REVISED DEPARTMENT OF THE ARMY RECORD OF DECISON & PERMIT EVALUATION APPLICANT: COEUR ALASKA, INCORPORATED and Goldbelt, Incorporated APPLICATION NO.: POA-1990-592-M and POA-1997-245-N WATERWAY: Lynn Canal and Berners Bay This document constitutes the United States (U.S.) Department of the Army, Corps of Engineers' (Corps) Record of Decision (ROD), compliance determination according to the National Environmental Policy Act (NEPA), the U.S. Environmental Protection Agency's (USEPA) Section 404(b)(1) Guidelines! (Guidelines), and the public interest review for Coeur Alaska, In- corporated, (hereafter referred to as "“Coeur"), proposed Kensington Gold Project. The U.S. Forest Service (USFS) initiated the NEPA process to identify and analyze alternatives to the amended Mining Plan of Operation submitted to the USFS for the operation of the Kensington Gold Mine. The USFS was the lead Federal agency for the pro- ject, and the Corps was a cooperating agency to the Environmental Impact Statement (EIS) published in 1 40 CFR 230 341a February 1992, and to the Supplemental EIS (SEIS) dated August 1997. The Corps has been a cooperat- ing agency on and throughout the current Final SEIS (FSEIS) process, which was completed in De- cember 2004, when the USFS published the FSEIS and the USFS' ROD. Alternative D is the USFS's preferred alternative and has been adopted by Coeur.2 The Corps authorized Alternative D, to two different permittees in separate permits (e.g., to Coeur for the Kensington Gold Project and to Gold- belt, Incorporated (hereafter referred to as ‘'Goldbelt") for the Cascade Point marine facility). The aforementioned documents® included a complete project impact analysis and review of the direct, sec- ondary, cumulative, and reasonably foreseeable impacts of the project as well as pertinent alterna- tives. These analyses have also resulted in minor changes to the proposed activities. I have independently reviewed and evaluated the in- formation in the EIS, the DSEIS and the FSEIS, in accordance with 40 CFR 1506.3 and 33 CFR 230.21, and have found them to be accurate assessments, and therefore appropriate for the purposes of the 2 The applicant had originally applied for Alternative B (described in Section VI, later in this ROD), Alternative D was not in the Draft of the FSEIS, hereafter referred to as the DSEIS, but originated later as a result of comments received from Federal, State and local agencies, as well as the land manager (USFS), with respect to the DSEIS. 3 These documents are all available at the USFS, 8465 Old Dairy Road, Juneau, AK 99801. A copy of each was incorporated into the case file. 342a public interest review and alternatives analysis re- quired by 33 CFR 320.4(b)(4) and 40 CFR 230.10. The Corps hereby adopts the FSEIS for the Kensing- ton Gold Project, and those parts of the Kensington Gold Project EIS and SEIS not changed by the FSEIS. I. DECISION: I have decided, in light of the overall public interest, to issue two Corps permits pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403), and pursuent to Section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344) (10/404 permit). One permit will be issued to Coeur to authorize the discharge of processed mine tailings into Lower Slate Lake, and the discharge of fill ma- terials into waters of the U.S. to construct a marine dock facility at Slate Creek Cove in accordance with the attached drawings (Attachment E), Alternative D in the FSEIS and this ROD. The second permit will be issued to Goldbelt for the Cascade Point Docking Facility. See Plans of Gold- belt, attachment A. The Corps' ROD is based upon information contained in the EIS, DSEIS, the FSEIS and the USFS's ROD, the stated views of Federal, State, local agencies, the interested public, current national policy and appli- cable laws and regulations. This decision has been made in conformance with the USEPA memoran- dum, entitled, "Clean Water Act Regulation of Mine Tailings", dated May 17, 2004. The possible conse- quences of all alternatives, including the USFS's preferred alternative, have been evaluated in terms of environmental effects, social well-being, and the 343a public interest. All factors which may be relevant to my decision were considered, including the cumula- tive effects thereof. These factors included, but were not limited to conservation, economics, aesthetics, general, environmental concerns, wetlands, cultural values, fish and wildlife values, flood hazards, flood plain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, mineral needs, consideration of property ownership, and in general, the needs and welfare of the people. Turbidity, total suspended solids (TSS), aluminum, and chromium are the principal components and elements of concern within the tailing storage facility (impoundment). The tailings deposited into the im- poundment will have been processed to remove sulfides and the contained gold. The ore will be crushed and ground, with the sulfides and gold min- eralization removed by a floatation circuit. This would leave trace concentrations of metals bearing sulfides, metal oxides, metal sulfates, and carbonate salts. Up to 40% of the tailings will be placed back underground in a wetted cement mixture. No cya- nide or arsenic will be added to the ore as a reagent to recover gold. In fact, the gold concentrate will be shipped offsite for final recovery. The water in the impoundment will not be directly discharged into 4 These and other factors, which were addressed in the DSEIS and FSEIS, Chapters 3 (Affected Environment) and 4 (Environmental Consequences), which adequately addressed the environmental and public Interest factors. No new factors have been identified as a result of this re- view. 344a any receiving water. The water from the tailings storage facility will be pumped by pipeline to a water treatment facility before discharge to the East Fork of Slate Creek. To ensure water quality standards for the project are met, all water from the impoundment will have to go to and through a water treatment plant during operation. The discharge from the water treatment plant is subject to an NPDES permit. To ensure that the tailings are reclaimed in accordance with approved plans, the USFS and ADNR will hold reclamation bonds on the operation to ensure that all reclamation standards are met. See Section XI, Sub- part G. Attachments to Record of Decision: Plans of Goldbelt Kensington Mine Section 404(b)(1) analysis. List of Reference Documents Revised Special Conditions for Coeur permit Revised permit application tables and drawings, Coeur Signed Department of the Army Permit Evalua- tion and Decision Documents for Goldbelt, Incorporated: (1) POA-1997-245-2 (Cascade Point Dock), and (2) POA-1997-245-M (Road from Echo Cove to Cascade Point), G. The Section 404(b)(1) Analysis and Public Inter- est Review for POA 1997-245-N (Cascade Point Dock). The documents listed in Attachment C were submit- ted to the Corps by the applicant and by various Federal and State agencies as supporting documents, and specified documents or portions of the listed documents have been incorporated into this ROD by reference. 3 BOOP 345a Il. PROPOSED PROJECT: The location and description of the proposed work was described in the Corps public notice, dated June 21, 2004. The 45- day comment period, originally commensurate with the comment period of the DSEIS, was later ex- tended at the request of various Federal resource agencies to August 20, 2004. Coeur's proposal is to mine gold from subsurface mineral deposits located within the Tongass Na- tional Forest on Federal and private patented lands, just north of Berners Bay, Alaska. Coeur proposed® in June 2, 2004 in a revised applica- tion to place structures, and to discharge an approximate total of 5,451,700 cubic yards (cy) of fill material into an approximate total of 91.7 acres of waters of the U.S., including wetlands, in conjunc- tion with the construction of the following new mine facilities and associated infrastructure: Acres of US Proposed Proposed Waters To Be Fill Volume Facilities Impacted (cy) Process Arca 5.3 88,000 Tailing Dam 1.4 145,000 Access Road 12.0 26,000 Laydown Area 5.0 4,800 Waste Rock Disposal 4.8 311,000 Borrow Areas 4.2 0 Mine Tailings 45.5 4,800,000 Tails Placement Facilities 8.9 15,000 Topsoil Stockpile 1.0 33,000 Slate Creek Terminal 3.6 28,900 TOTAL 91.7 5,451,700 5 The location and description of the proposed work was described in the Corps public notice, dated June 21, 1004. 346a These activities included the discharge of fill mate- rial in waters of the U.S., and the placement of several structures (floats, docks and piles) in naviga- ble waters of the U.S., in conjunction with the construction of a marine dock facility in Slate Creek Cove. The individual components of the proposed work in- cluded the following activities: (1) the construction of building pads for milling facilities, administrative, and support facilities; (2) construction of a tailings dam; (3) construct fill pads associated with the tail- ings pipeline, access roads, a discharge pipe, and a pump-back sump (located at the toe of the proposed dam); (4) construction of a waste rock disposal site; (5) construction of abutments for the main access road, which would run from Slate Creek Cove to the process area, plus fills associated with the construc- tion of various’ bridges (abutments, _ etc.); (6) construction of a staging and laydown area, as well as an infiltration gallery in Johnson Creek; (7) approximately 4,800,000 cy (or 4.5 million tons) of fill material would be discharged into approximately 45.5 acres of waters of the U.S.; (8) material and top- soil stockpiles for use in concurrent and closure reclamation activities; (9) construction of 2-foot high berms encircling settling and storage ponds; and, (10) construction of a marine dock facility in Slate Creek Cove. Galvanized metal piling would be used to anchor various floating components of the dock fa- cility. Coeur did not include the Cascade Point docking fa- cility in their Department of the Army (DA) permit application. The Cascade Point docking facility ap- plication was submitted separately by Goldbelt, Incorporated, and previously evaluated as an inde- 347a pendent activity by the Corps in our decision docu- ment for that project. This ROD now analyzes Cascade Point as a component of the Kensington Gold Project. Two different permit decisions are be- ing made; one for the Kensington Mine Project, and another for a docking facility at Cascade Point. We re-examined our previous conclusion that the Cas- cade Point facility was a separate and independent project. Based on a review of all available informa- tion including, but not limited to, the FSEIS, Goldbelt's submissions, and the City & Borough of Juneau's Conditional Use permit, we determine that, without the Kensington Mine, the Cascade Point fa- cility would not be constructed in the foreseeable future. Although we recognize that Goldbelt intends the dock to be used for other purposes in the future, such plans are insufficient for us to evaluate it as an independent activity. We therefore conclude that a destination docking facility at Cascade Point is a component of the Kensington Mine project. It is ana- lyzed in the FSEIS, this ROD, and in attachments F (as modified by attachment G) and G (both incorpo- rated into this ROD). The applicant originally applied for Alternative B, as reflected in the Corps public notice, stating that ap- proximately 5,451,700 cubic yards of fill material would be discharged into 91.7 acres of waters of the U.S., including wetlands. The applicant later adopted the USFS's preferred Alternative D, with the volumes and acreages described in Section VI be- low, prior to publication of the FSEIS. Ill. PURPOSE AND NEED FOR ACTION: The basic purpose is to develop a working, profitable gold mine for the Jualin/Kensington ore body. This will be accomplished by extracting the gold ore and reducing 348a it by removal and disposal of non-marketable compo- nents, and by transporting the gold concentrate to market. There are several transportation links and construction activities implicit in the overall mining operation. The overall mine operation project would need the following components: (1) building pads for milling facilities, administrative and support facilities; (2) tailings disposal facilities; (3) fill pads associated with pipelines; (4) a waste rock disposal site; (5) ac- cess roads and bridge abutments; (6) staging and laydown areas; (7) an infiltration gallery; (8) mate- rial and topsoil stockpiles; (9) two marine dock facilities; and (10) berms to encircle settling and storage ponds. Coeur's need is to relocate® the major mine compo- nents from the Kensington Mine site adjacent to Lynn Canal, to the Jualin Mine site location in the Johnson Creek watershed (approximately two miles to the southeast across a southern ridge extension of Lion's Head Mountain), and at Slate Cove, on the northwest side of Berners Bay. This action would al- low Coeur to transport ore from the mine directly’ to a mill on the Jualin side of the peninsula for process- 6 The locations of certain structures, as yet not con- structed, were referenced in the previous Corps authorization. The current proposal would relocate these structures on 'paper' to new locations. 7 The ‘high-grade’ ore body that would be mined is lo- cated on the eastern side of Lions Head Mountain. Thus, locating the mill on the eastern side would shorten the distance from ore body to portal to mill. 349a ing, from where the processed tailings material slurry would then be piped by gravity feed directly to the alpine lake disposal site (Lower Slate Lake). Coeur needs to establish a marine dock facility in Slate Creek Cove for the transport of mine personnel safely to another destination port and move gold con- centrate efficiently and reliably off the mine site. IV. SCOPE OF ANALYSIS [33 CFR 325, Appendix B, 7(b)j: When an applicant proposes to conduct a specific activity (e.g., the actions proposed by Coeur in the Corps' public notice, dated June 21, 2004), requiring authorization from the DA, and it is merely one component of a larger project (e.g., an on- going mining operation), the District Engineer (DE) shall establish the scope of the ROD and/or permit evaluation assessment to address the impacts of the specific activity requiring Corps authorization and those portions of the entire project over which the DE has sufficient control and responsibility to war- rant Federal review. Sufficient control and responsibility is considered to exist for portions of the project beyond the Corps’ jurisdiction where the Federal involvement is sufficient to turn an essen- tially private action into a Federal action. These are situations where the environmental consequences of the larger project are essentially products of the Corps’ permit action. (See 33 CFR 325 Appendix B, Paragraph 7.b.) For this proposal, works initially identified as requir- ing Corps authorization are limited to the placement of structures, and the discharge of dredged or fill ma- terial into waters and navigable waters of the U.S. However, the DE is considered to have control and responsibility for portions of the project beyond the limits of Corps jurisdiction where the Federal in- 350a volvement is sufficient to turn an essentially private action into a federal action. These are cases where the environmental consequences are essentially products of the Corps permit action. Typical factors to be considered in determining whether sufficient control and responsibility exists include (1) whether or not the regulated activity is ‘merely a link' in a corridor type project; (2) whether adjacent uplands in the immediate vicinity of the regulated activity af- fected the locations and configuration of the regulated activity; (3) the extent to which the entire project will be within the Corps jurisdiction; and (4) the extent of cumulative Federal control and re- sponsibility. Combined Federal controls are influenced by the fact that the work would be conducted in part on Feder- ally administered lands (Tongass National Forest — USFS), and in part on State of Alaska administered lands (Alaska Tidelands — marine dock facility); the water leaving the impoundment behind the dam is subject to the (USEPA) regulations (i.e., subject to the USEPA's authorization to discharge under the National Pollutant Discharge Elimination System (NPDES Permit); and other Federal laws (e.g., En- dangered Species Act, Fish and Wildlife Coordination Act, the National Historic Preservation Act, the Ma- rine Mammal Protection Act, the Coastal Zone Management Act, etc.). There are alternatives available to the applicant, that would allow various activities of the Kensington Gold Project to function without the need for Corps authorization, e.g. use of uplands®,9. Additionally, 8 FSEIS, Section 2.2, Overview of Project Alternatives. 35la logistics, technological or economic concerns, and/or other Federal or State regulatory findings could af- fect the practicability of some of the listed alternatives. The scope of analysis for this action includes not only the impacts, alternatives, and project benefits result- ing from the primary proposed actions (two marine docking facilities and a mine tailings disposal site) as identified above, but also the infrastructural items, e.g., the road system, pipelines, and material stock- pile sites. Other project-related impacts not within the scope or a product of Corps authorization have been summarized and identified in the direct, secon- dary and cumulative impact analysis sections of the FSEIS. 1° V. BACKGROUND: In July of 1992, the USFS approved a Plan of Operations (POO) for the Ken- sington Gold Project. The POO called for underground mining; ore processing with on-site cyanidation; a tailings impoundment; marine dis- charge of process wastewater; and various support facilities, including the use of liquefied petroleum gas for power generation. Comet Beach was the proposed landing site for all supplies and fuel. A man camp was proposed for the workers. The Corps evaluated a DA permit application for the creation of an im- poundment in Sherman Creek Valley, and the disposal of mine tailings behind that dam. The Corps completed a public notice, public meetings, public 9 ROD, Section VI. Alternatives, below. 10 See FSEIS, Section 4.21, Cumulative Effects. 352a hearings on this proposal, but never issued a DA permit for that facility. In August 1997, the USFS approved a revised POO for the Kensington Gold Project. The modified plan called for off-site processing of a floatation derived gold concentrate; placement of tailings in a dry tail- ings facility accessed through a pipeline, with 25% of tailings to be paste (wetted cement mixture) back- filled in the underground workings; diesel fuel would be used for power generation; and the tailing slurry would be piped to a dewatering plant and the re- claimed water returned for reuse. Comet Beach was the proposed landing site for supplies and fuel. A camp was proposed for the workers. The Corps of Engineers received a DA permit application for this new facility design. The Corps completed a public no- tice, public meetings, and public hearings on this proposal. After a thorough evaluation of the project the Corps of Engineers issued a permit for the dry tailings facility and the support infrastructure. Between the times the 1997 FSEIS evaluated the Kensington Mine Project and the revised Kensington Mine Project proposal in 2001, Coeur gained control of the Jualin Mine site and this changed the land status and gold resource calculations which resulted in a need to modify the Plan of Operation. The previ- ous POO sited all of the mining and milling operations on west side of Lion's Heads Mountain ridge with access and support facilities located at Comet Beach on Lynn Canal. In the 2004 FSEIS, this scenario is represented by all "A" Alternatives. The 2001 revised POO resulted in the siting of the marine dock facility, the mill, access road, and wet tailings storage facility on the east side of Lion's Heads Mountain ridge. Except for the eventual con- 353a nection by indirect tunneling for air flow purposes, support of waste rock disposal resulting from edit development (tunneling), and water treatment facili- ties located on the west side, no alternatives were contemplated or considered for a split operation, e.g. a mill operation on one side of the ridge and tailings disposal on the other. Comet Beach would still be used for support of the west side developments. In November 2001, Coeur submitted an amendment to its approved 1998 Plan of Operations to the USFS. The amendment modified site access and eliminated the dry tailings facility in favor of placing the tail- ings into an impoundment in Lower Slate Lake. With the elimination of the dry tailings facility (113 acres in size), two gravel borrow areas (totaling 43 acres), which were located underneath wetlands, were also eliminated. The ore would go through a floatation circuit and the concentrate would be shipped offsite for processing. The proposal included 40% of the tail- ings being placed underground as a paste backfill. The mine site now includes both the Kensington and Jualin sites. Access to the-mine site would be from the Jualin side, and include a marine dock facility in Slate Creek Cove off of Berners Bay. A daily com- mute for the mine workers was proposed, and the man camp eliminated from the proposal. In Decem- ber of 2004, the USFS finalized the Supplemental Environmental Impact Statement and issued their Record of Decision for the modified Kensington pro- ject. The DA has been a cooperating agency on the SEIS for this project and this ROD constitutes the Corps decision on the latest mine project design pro- posal. 354a VI. ALTERNATIVES CONSIDERED: For the reasons discussed below, the Corps has con- cluded that alternative D with the inclusion of the water treatment plant and water diversion is the least environmentally damaging practicable alterna- tive. The No Action Alternative (listed as Alternative A in the FSEIS) is not environmentally preferable for the reasons discussed in Section VII below. Since Al- ternative D has the least environmental impact, it is the environmentally preferable alternative. This sec- tion discusses two categories of alternatives. The first category is alternatives for a tailings facility with related components. The second is alternative docking destinations. Determination of the Corps’ Jurisdiction. The USFS conducted wetland and vegetation mapping of the Al- ternative A lands (located in the Sherman Creek and Sweeney Creek watersheds) and published the re- sults in the 1992 EIS!1!, for the Kensington Gold Project. The USFS' mapping method was the proce- dure outlined in the 1989 Federal Manual for Delineating Jurisdictional Wetlands. However, "Since that time, the 1992 Energy and Water Devel- opment Appropriations Act mandated the use of the 1987 Corps of Engineers Wetlands Delineation Man- ual for wetland delineations instead of the Federal Manual for Delineating Jurisdictional Wetlands (Federal Interagency Committee for Wetland De- lineation, 1989). The Corps of Engineers has reevaluated the August 1990 wetland delineation performed for the Kensington Project, and as a result has determined that the wetland determinations 11 FEIS, Chapter 3, Vegetation, pages 3-45 through 3-48. 355a would remain the same based on the 1987 man- ual."12 The Corps conducted an onsite field visit on August 6, 1996, to verify the wetland delineation prior to giving approval. ' x**AK K * 12 FEIS, Chapter 3, Vegetation, pages 3-45 through 3-48. 13 See Corps' Memorandum dated August 12, 1996, file number POA-1990-592-D. 356a ... safety problems, which is an unacceptable risk to workers. Also, see Section VIII of this ROD for a discussion of cost issues. Conclusion. The Corps has considered the poten- tial alternative destinations listed above and concluded that the proposed Cascade Point dock- ing facility is the least environmentally damaging practicable alternative destination docking facil- ity. Three docking facilities were considered reasonable in terms of proximity to the Slate Creek Cove dock. The Corps has determined Cas- cade Point, Echo Cove, and Yankee Cove to be reasonable alternative destination docking facili- ties in terms of proximity, because they are close enough to the north end of Berners Bay to allow for daily commuting. The other sites discussed above are more distant and would not allow for daily commuting. This is because more than a three-hour commute results in more than a 14 hour workday for the miners, and is unsafe, Ref- erence the memorandum to the file, entitled, "Coeur Miner's Work Day", dated February 14, 2006. Use of the more distant docking facilities would therefore require construction of a residen- tial camp near the mine site, at greater expense and environmental impact.49 The more distant docking facilities are not practicable destinations and were not carried forward for further review. Use of Yankee Cove would result in more expo- sure to rough seas in Lynn Canal. The Lynn Canal route (outside Berners Bay) would be dan- 49 Kensington Gold Project, Corps of Engineers 404(B)(1) Practicability Analysis, Prepared by Coeur, October 2004. 357a gerous and unavailable for worker transport over extended winter periods. For this reason, the Corps does not consider Yankee Cove a practica- ble destination port. Therefore, Cascade Point and Echo Cove are the only remaining destina- tions that are practicable. Of these two practicable alternative destinations, Cascade Point is the least environmentally damaging, and thus is the environmentally preferable alterna- tive. The environmental impacts of each are described above.59 Vil. ANALYSIS OF THE LEAST ENVIRON- Permanent Losses.*? All variants of the Dry Tailings Facility would result in the permanent loss of 34 to 113 acres of aquatic habitat (special aquatic site), which consists of forested and scrub-shrub wetlands. The wetland functional values of the Dry Tailings Facility were determined to be medium for wildlife 50 See Attachments B (Section 404(b)(1) Analysis), and G. Also, see Section XI, later in this ROD. 51 The majority of the wetlands to be impacted would be heavily forested, with some scrub shrub mix. Other wet- lands (Wet Tailings Storage Facility) would be lake oriented (e.g., lacustrine emergent. This was discussed in the FSEIS, and summarized in the Summary of Potential Impacts of Each Alternative, under the headings of Re- sources, and impacts (by function and value). 52 See 404(b)(1) Evaluation. 53 FSEIS, Chapter 3, Section 3.12.3, and Chapter 4, Sec- tion 4.12.3. 358a habitat, production export and flood flow alteration, and low for riparian support. Placement of fill mate- rial into this area would reduce these wetland functions to zero. Upon final reclamation, the Dry Tailings Facility might regain some habitat value, but no wetland functions. This would not be expected to occur in the short term. The functional value at the Dry Tailings Facility site as well as at the site of the connecting road system would cease immediately with the initial mechanical land clearing operations. The continued presence of humans and equipment would ensure that the pro- ject site was devoid of all habitat values, or ‘zero- function'.54 Once all fill material has been dis- charged, and after reclamation activities have been completed, and the area has been deserted by hu- mans, other functions (e.g., wildlife habitat) would develop over time. These would be functions specific to an v»land, non-forested habitat, and the conver- sion of wetlands to uplands would be permanent. Under Alternatives A through A-3, additional wa- ters, including wetlands, would not be reclaimed for all other project component areas. Some permanent loss (up to approximately 70 acres) would remain in addition to the DTF. These areas have similar func- tions and values to the DTF area, with some higher value areas near Sherman creek. 54 Zero-function is defined here as having no vegetation or water sources present, and having only bare ground and therefore providing no habitat functions such as food sources, cover from predation, nesting sites, etc., all of which is supportive of wildlife and/or fish populations. 359a Construction of the Wet Tailings Storage Facility would result in the permanent loss of 3.44 acres of aquatic habitat (within the footprint of the dam). This includes high value wildlife habitat. The docking facility at Cascade Point will require permanent filling of approximately 1.3 acres of ma- rine waters. This location has a rocky sand and gravel substrate with some fucus and kelp plant communities. It provides some herring spawning habitat. Some recolonization of this plant life is ex- pected after placement of fill. The loss of this area is small in the context of Berners Bay and is considered a minimal loss of functions and values. Temporary losses: The FSEIS stated that "For the purposes of this analysis, it is expected that all fish and most other aquatic life (such as macroinverte- brates, periphyton, and zooplankton) in Lower Slate Lake would be lost during operations as a result of this action. Some individuals might survive, but marginal food sources and the lack of suitable habi- tat as the lake elevation rises appear to be the major limiting factors."°° Functional habitat values in the Wet Tailings Storage Facility area include high val- ues for wildlife habitat (located primarily along the lake edge), and moderate values for fish habitat, and low values for carbon/detrital export, with low to moderate values for sediment/shoreline stabilization 55 See FSEIS, Section 4.9.3, page 4-38, Integrity of Freshwater Habitat. 360a and nutrient cycling.56.16 The inundation of adjacent forested and scrub-shrub wetlands by the rising lake waters would reduce the wildlife habitat values of those wetlands. There will be a conversion of one aquatic habitat type (wetland) for another (open wa- ter). Lower Slate Lake will be used as the settling pond and disposal site for the tailings generated from the mill. The mill will crush, grind, and float the sulfides out of the material. The sulfides contain the gold and will be processed off site. There will be no cyanide or arsenic added to the milling circuit. The tailings have been analyzed for the ability to generate acid drainage, and to develop metals that could become mobile. The tests described in the FSEIS App. C have shown that the tailings will not be a generator of acid or heavy metals. The tests were performed on both the tailings and the tailings decant water. The components of the tailings decant water that were identified as contaminants include aluminum, chro- mium, pH, and Total Suspended Solids. The tests have concluded that the pH around the discharge pipe will be toxic to the aquatic environment. This will dissipate very rapidly. The TSS will be harmful to the fish in the immediate area of the discharge. The suspended solids will be discharged to the lower depth portion of the lake. The aluminum levels from the tailings decant water will rapidly decrease to natural levels as the pH is neutralized. Aluminum will pose 4 low risk to aquatic life. This is because 56 FSEIS, Sections 3.9 (Aquatic Resources: Freshwater), 3.11 (Wildlife), and 4.9.3 (Effects Common to Alternatives B, C, and D), and 4.11 (Wildlife). 361la the aluminum concentrates in the tailings is less than that in the lake sediment and the decant water levels are similar to existing concentrations in the lake. The chromium would be in a reduced form, and because of sub-aqueous disposal and the low oxygen conditions, would not be oxidized to a more toxic form. There would be a low potential for chromium to be a risk to aquatic life. Impacts to the aquatic com- munity from physical stress are a greater risk than increased chemical concentrations. Aquatic life will die primarily from being covered with tailings and from the TSS. The lake will recover over time. The tailings will be placed at a depth to prevent remobilization after clo- sure from wave action. The tailings will be under water and out of the energy of wind driven waves. Post closure water concentrations of chromium and aluminum would pose a minimal risk to aquatic life. Capping of the tailings will assist in re-establishing lake bottom habitat. It is expected that the lake eventually will provide at least equivalent productiv- ity as the current conditions of Lower Slate Lake. The reclamation of the lake will result in more emer- gent wetlands/vegetated shallows with moderate values for fish habitat, nutrient recycling, car- bon/detrital export and sediment/toxicant retention, and high values for wildlife habitat. This functioning emergent wetland/vegetated shallows lake complex, including 15 acres of emergent wetland/vegetated shallows as part of a 62 acre lake, is more valuable to the aquatic ecosystem than a permanently filled wet- land (DTF) that has lost all aquatic functions and values. The Federal and State resource agencies have condi- tioned the respective permits to require habitat and 362a mortality monitoring activities in the Wet Tailings Storage Facility. Collected information would be used to determine the effects of the discharge of tail- ings on the lake habitat. The surface of the lake waters should rise, by project closure, to its maxi- mum height above the lake's original surface, and the lake waters would eventually inundate approxi- mately 39 acres of adjacent forested and scrub-shrub wetland habitats5’, converting these to a deepwater habitat. This would constitute a conversion of one type of water of the U.S. to another: converting adja- cent forested and/or scrub-shrub wetlands to non- vegetated waters. These non-vegetated waters would convert, by either natural or artificial58 means (ac- tive lake restoration), to emergent wetlands/ vegetated shallows (special aquatic sites). The an- ticipated end result would be a lake of approximately 62 acres in area (47 acres of deepwater habitat and 15 acres of emergent wetlands/vegetated shallows along the fringe). This conversion process would con- 57 The applicant intends to clear these land areas me- chanically prior to inundation of the lake waters. Otherwise, the vegetation would inhibit movement of the raft carrying the slurry line, and preventing an even deposition of material onto the lake bottom. 58 The Kensington Gold Project's Mining Plan of Opera- tions contains a Reclamation Appendix, which includes the Lake Restoration Plan. The DA recognizes that this Restoration Plan is a conceptual plan, and that future re- visions will be evaluated and approved as appropriate. Capping of the mine tailings in the impoundment is re- quired by ADEC. The final reclamation plan will assure that the latest methods are used to maximize success. 363a tinue during and after the life of the project. The lake and its emergent fringe wetlands/vegetated shallows would provide potential fish habitat after final lake restoration had been completed and would include food sources, protection from predation, nest- ing capabilities, etc., whereas the lake's open waters would provide an open space for fish and other motile organisms.°? The FSEIS concluded that after closure Lower Slate Lake could be restored to at least equivalent aquatic habitat. For all alternatives, wetlands on which other project components (e.g., connecting roadways, borrow sites, building and material storage fill pads, etc.) will be located, all have high values for wildlife habitat, and carbon/detrital export, with moderate values for sediment and/or nutrient cycling.69 The temporary discharge of fill into the forested and scrub-shrub wetlands for the construction and operations of these structures would result in reduced wildlife habitat vaiues during the life of the project. However, at pro- ject closure (and completion of all required reclamation) there will be moderate to high (when fully recovered) functions for wildlife habitat in these reclaimed areas. The proposed marine docking facility at Slate Creek Cove has low to moderate fish habitat values. The placement of structures (e.g., piles and floats) and the discharge of fill into the intertidal waters for con- 59 FSEIS, Sections 4.9 (Aquatic Resources: Freshwater) and 4.9.3 (Effects Common to Alternatives B, C, and D. 60 See FSEIS, Sections 3.9 (Aquatic Resources: Freshwa- ter) and 3.11 (Wildlife). 364a struction of an abutment for a docking facility would resul [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0065%3A09. Public record. Not legal advice.