DEC advised to rescind wetlands permit for Donlin Gold mine

Administrative law judge says project would not meet state water quality standards

An administrative law judge has concluded that the Alaska Department of Environmental Conservation was wrong in issuing a Clean Water Act permit to Donlin Gold, because the project would not meet state water quality standards.

DEC Commissioner Jason Brune has 45 days from Monday April 12, when Judge Kent Sullivan issued the decision, to decide whether to adopt the ruling.

The Donlin Gold project, in the historic Kuskokwim Gold Belt of Southwest Alaska, is owned by subsidiaries of NOVAGOLD and Barrick Gold Corp. and Calista Corp., an Alaska Native regional corporation. In its project overview, the company states that the large-scale open-pit mining venture has strong Alaska Native corporation and community partnerships. The company estimates the proposed mine could produce an average of 1.3 million ounces of gold annually during operation, a level that would make it one of the world’s largest gold mines.

The Orutsaramiut Native Council, which provides a broad range of social services to the area’s predominantly Alaska Native population, opposes the mine. ONC has been represented by the environmental law group Earthjustice in contesting permits for the mine.

Sullivan noted in his 78-page decision that, in issuing a permit, DEC must determine whether reasonable assurance exists that construction and operation of the project will be conducted in a manner which will not violate applicable water quality standards. To the extent that conditions are required for reasonable assurance to exist DEC must specify those conditions in the certificate itself, he wrote.

It is obvious that the overwhelming majority of the salmon productivity in Crooked Creek will be eliminated, the judge concluded. In the absence of mitigation or other compensatory measures, it cannot be said under these circumstances that the protection of existing uses is reasonably certain to occur, he said.

Efforts to reach Donlin Gold officials for comment were unsuccessful.

The judge’s decision demonstrates that the concerns of the people of the Kuskokwim River surrounding development of the Donlin prospect were, and are legitimate, said Mark Springer, executive director of the Orutsaramiut Native Council in Bethel.

“We knew from the beginning that DEC erred in their hasty issuance of the 401 certificate,” Springer said. Under Section 401 of the Clean Water At states and authorized tribes have the authority to grant, deny or waive certification of proposed federal permits that may discharge into waters of the United States.

Springer said that ONC is encouraging Brune and the Dunleavy administration to take to heart conclusions contained in this proposed decision and ensure protection of salmon streams otherwise slated for destruction as well as the additional noted long term environmental impacts on the Kuskokwim River drainage and the communities within it.

Sovereign tribal governments have a responsibility for the health and welfare of their citizens, and there is nothing more important to Kuskokwim communities and their people than maintaining the subsistence way of life that has sustained them through millennia, Springer said. That way of life depends integrally upon salmon and smelt from the Kuskokwim River and its tributaries. The Donlin prospect, upstream of these communities, would be a direct threat to water quality, to fish traversing these waters and to the Kuskokwim way of life, he said.

Olivia Glasscock, the Earthjustice attorney representing ONC, said that DEC would be well advised to consider the careful process the judge went through in reaching his conclusion and accept it. DEC has had two years to litigate these issues and they haven’t shown that these water quality standards will be met, she said.