Middle River Dispatches

A gumbo of fly-fishing, conservation, politics and days afield, for what it is worth....

Alaska’s “Salmon Forest” is in Jeopardy

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Removing Roadless Protections for the Tongass National Forest is a Mistake

In late October, the U.S. Forest Service (USFS) issued a final rule and record of decision exempting Alaska’s Tongass National Forest from the 2001 Roadless Area Conservation Rule (2001 Roadless Rule). The 2001 Roadless Rule prohibited timber harvest and road construction in designated inventoried roadless areas within our national forests. The Administration’s action removes protection of approximately 9.4 million acres of the 16.9 million acre Tongass National Forest – thus making more than half of the Tongass available for logging and other resource development. Additionally, it would bring 188,000 acres of old growth forest to the table that was safeguarded by the roadless rule within the 2016 Tongass National Forest Land and Resource Management Plan.

The Tongass National Forest is the largest national forest in the U.S., the world’s largest intact temperate rainforest, and a bulwark against climate change. It holds some of the largest old growth trees in the world, watersheds that provide clean drinking water, essential wildlife habitat, and outstanding outdoor recreation opportunities that should be kept safe for generations to come.

The Tongass is part of the fabric of Alaskan culture and raises more salmon – including all five of North America’s Pacific salmon species – than all other national forests combined. If you are an angler, commercial fisherman, or care about fish, that is a big deal. The fishing and tourism industry that relies on the Tongass accounts for more than 25 percent of local jobs in the region.

By comparison, timber harvesting provides one percent of southeastern Alaska’s jobs, compared with seafood processing’s eight percent and tourism’s 17 percent. A report recently released by Taxpayers for Common Sense documented 40 years of money-losing timber sales in the Tongass National Forest. Its report notes:

Since fiscal year 1980, the USFS has lost approximately $1.7 billion or $44 million per year on average. USFS could end up losing nearly $190 million in the Tongass over the next five years from planned sales, and more if currently roadless areas are opened to logging.

Since this is federal land owned by all Americans, not only will U.S. taxpayers foot the bill, but most of the timber would also go overseas to China. In an opinion piece published in July in the Washington Times, Ed Rollins, longtime Republican campaign consultant and current chairman of the Great America PAC, wrote, “The U.S. Forest Service (USFS) is on the verge of determining whether public lands are managed for the benefit of Americans or for Chinese economic interests.” He continues:

When you break it down at the simplest level, American taxpayers are paying for the economic benefits of China — and they aren’t happy about it. And the Forest Service proposal to drop roadless area protections on the Tongass will only exacerbate the problem.

Commercial fishing is also foundational to Alaska’s economy. The Tongass is home to the world’s largest salmon population. Linda Behnken, executive director of the Alaska Longline Fishermen’s Association, said:

The Tongass National Forest is the largest and most extensive temperate rainforest in the world. It is also Southeast Alaska’s SeaBank. That SeaBank supports the southeast economy with annual dividends in seafood, recreation, wildlife, water and forest products. The dividends and values from SeaBank are paid annually, provided we safeguard the natural capital of the forest. The global ecosystem service values annually provided by the Tongass are between $125-145 trillion. That value increases every year as climate change raises the stakes on carbon sequestration and intact, functioning ecosystems. Why would we risk the forest for the trees? The roadless rule is critical to protecting the Tongass SeaBank for future generations.

Austin Williams, director of law and policy for Trout Unlimited in Alaska, writing on Trout Unlimited’s blog, noted the economic importance and the public’s support to roadless protections:

This is the latest effort by politicians catering to a failing old-growth logging industry that refuses to adapt to the changing global economy, fails to recognize the Tongass is much more valuable for its wild salmon than as a source of timber for foreign markets, and that persists only because of massive government subsidy. With any luck, this shortsighted decision won’t be on the books for long.

More than 96% of public comments on this proposed decision favored keeping the roadless rule in place. In some Alaska communities, every single comment submitted to the Forest Service wanted roadless areas protected. Tribes, small-business owners, hunters and anglers, subsistence users, scientists, and people from all walks of life spoke up in favor of fish, wildlife, beautiful scenery, and for putting an end to unsustainable clear-cut logging of our best remaining old-growth forest.

Hunters, anglers and outdoor enthusiasts have been vocal proponents of conserving Alaska’s roadless treasures. With their large populations of game and healthy fisheries, these public lands and waters are essential for Alaska’s outdoor economy. Land Tawney, president and CEO of the Backcountry Hunters and Anglers, calls upon the U.S. Department of Agriculture, which oversees the USFS, to consider other users of the public lands:

The backcountry habitat found in the Tongass is quite simply irreplaceable, a jewel in the crowning achievement that is our national forests system, and we as a nation will be poorer if we suffer its loss and weaken conservation standards for our roadless areas. U.S. roadless areas play a crucial role in the health of our big game populations, our iconic fisheries and our opportunities to find adventure and solace on our public lands. Together, sportsmen and women urge Secretary [of Agriculture] Sonny Perdue to listen to Alaskans, to hunters and anglers, to the business owners and community members who have overwhelmingly spoken up, again and again, for conservation of the Tongass.

While public lands issues may seem far afield from federal fisheries policy, everything in nature is interconnected. In fact, the Tongass and the roadless rule are not new issues for the Network’s leadership. Our executive director, Rob Vandermark, said:

In the years before joining the Network, both deputy director Tom Sadler and I worked to safeguard our national forests and the habitat they provide through the roadless rule. I’ve had the opportunity to spend much time in the Tongass and experienced its majesty – it is a natural treasure. There are a myriad of vital reasons to uphold these protections, not the least of which is the cultural and economic importance to the Network’s members, supporters and constituents. This action is contrary to President Teddy Roosevelt’s vision for the creation of our national forest system. I hope the incoming Biden Administration or Congress will quickly right this wrong.

The Network will continue to follow developments surrounding this issue and share updates as they become available.

Editors note: This article originally appeared on the Marine Fish Conservation Network’s “From the Waterfront” blog.

Bristol Bay/Pebble Mine – Mitigation Plan Filed.

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My friends at SalmonState put out an update last week. The mitigation plan has not been released to the public yet and the U.S. Army Corps of Engineers can take their time about making a decision. Some folks think the current administration will still do the right thing. I’m skeptical, but will be delighted to be proven wrong.

SalmonState: Pebble’s mitigation plan inherently flawed; veto only way to defend Bristol Bay

Anchorage, AK—Northern Dynasty Minerals, the parent company of the Pebble Limited Partnership, announced today [Nov. 16] that it has submitted to the U.S. Army Corps of Engineers the mitigation plan it hopes will allow its proposed open pit mine and toxic dump at the headwaters of Bristol Bay, Alaska to move forward. Bristol Bay is the planet’s greatest sockeye salmon run and has provided more than half the world’s sockeye salmon catch in recent years. Despite that, the area remains unprotected from destructive mining impacts. 

“You cannot ‘mitigate’ your way out of a toxic 200-year megamine at the headwaters of the world’s most important wild salmon habitat, which is pristine. This ‘plan’ is a continuation of a crooked process full of off-the-record, back-room deal conversations between the Pebble Limited Partnership, the Alaska District of the Army Corps of Engineers, politicians and political appointees,” said SalmonState executive director Tim Bristol. “The only way to defend the incomparable salmon resource of Bristol Bay — and to ensure fishermen, Tribes and Alaskans aren’t dragged through this rubber stamp ‘process’ all over again — is for the EPA to immediately veto the permit application through the Clean Water Act.” 

The Alaska District of the U.S. Army Corps of Engineers has a history of rubber stamping “mitigation” measures inconsistently and, at times, going against its own guidelines. It does not plan to make Pebble’s mitigation plan public until it has reviewed it and deemed it “compliant.”

Numerous independent mining experts and scientists have also identified the Final Environmental Impact Statement on which the mitigation plan is based as fatally flawed, which means the plan Pebble submitted would be grossly inadequate were mitigation even possible. 

Vote Public Lands and Waters

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With any luck this will be my last political post of this election. I hope that you will vote and take advantage of the opportunity we have in this country to make our preference for elected leaders known.

As has been my practice, I’ve written a letter to the editor of my local paper.

The land, water and wild things that inhabit it don’t get to vote, but you do. There is a clear choice with Joe Biden. If you enjoy the great outdoors, especially hunting and fishing on public lands, vote on their behalf and show an understanding and appreciation for the bounty of our public lands.

Read the full letter: https://www.newsleader.com/story/opinion/readers/2020/10/30/our-public-lands-deserve-our-vote/5980029002/

Politics has been a vocation and advocation of mine for more than 40 years. Never has an election in that span of time been more important for the future our country. I’ve made my choice.

To those I angered or annoyed, with my opinions or preferences, I apologize, I hope politics doesn’t define our friendship.

And know this, I will always support the chance for you to make yours.

The Navigable Waters Rule

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The saying goes something like this, “whiskey’s for drinking and water’s for fighting.” It is typically associated with ownership rights in the west. Still, for many years it has resonated with those of us who deal with the changing legal landscape and battlegrounds surrounding the Clean Water Act.

I’ve been working on or following the Clean Water Act jurisdictional issues for most of my conservation career. In 2003, I was the conservation director for the Izaak Walton League of America. We released a study titled “Jurisdiction Under the Clean Water Act: Implications of the SWANCC Decision” (copy available upon request.) Since then, there have been many twists and turns, making this one of the most contentious and complicated issues I’ve ever dealt with.

Where are we today?

In April 2020, the Environmental Protection Agency issued the “Navigable Waters Protection Rule: Definition of Waters of the United States,” aka the “Navigable Waters Rule.” undoing the Obama administration’s work. As Trout Unlimited noted, “This rule replaces a 2015 Rule, which clarified the extent of Clean Water Act protections for small streams and wetlands.  This new 2020 rule not only reverses the clarifications made in 2015 but further reverses protections that have been in place dating back to the 1970s.”

My friend Sam Lungren, MeatEater’s fishing editor, wrote a terrific article, Patagonia Will Sue Trump Admin. Over Clean Water Act, which not only explains the state of play today but gives a solid review of the history of how we came to the Navigable Waters Rule. As Lungren notes, Patagonia, a company I greatly admire, stepped into the arena and joined with Earthjustice in their lawsuit on behalf of the Pascua Yaqui Tribe, Quinault Indian Nation, Menominee Indian Tribe of Wisconsin, Tohono O’odham Nation, and Fond du Lac Band of Lake Superior Chippewa.

The Lawsuit

The lawsuit challenges and seeks to vacate two final rules promulgated by the EPA and the Army Corps of Engineers. The first, “Definition of Waters of the U.S.: Recodification of Pre-Existing Rules,” repealed the 2015 “Clean Water Rule” which defined the term “waters of the United States” in the Clean Water Act. The second, “The Navigable Waters Protection Rule: Definition of Waters of the United States,” replaced the Clean Water Rule and its predecessor rules with a definition of “waters of the United States” that, according to the filing, “substantially narrows the waters protected by the Act.”

The filing states; “The Navigable Waters Rule exceeds the Agencies’ statutory authority and is contrary to the Clean Water Act’s text, structure, objectives, and legislative history requiring broad protection of all the Nation’s waters, because its provisions exclude waters from the protections required and afforded by the Act.

“The Tribes also challenge the Repeal Rule and the Navigable Waters Rule as arbitrary and capricious because both rules are contrary to the evidence before the Agencies, including vast volumes of science and technical evidence in the administrative record and the uncontroverted findings made by the EPA and its own Science Advisory Board. The Agencies also failed to explain their decision to reverse prior regulations and failed to consider important aspects of the problem, including the effects on water quality and aquatic ecosystems of stripping protections for large numbers of waters, the ecological importance of protecting the excluded waters, and the effects of the reversal on the objectives of the Clean Water Act.

“These decisions are arbitrary, capricious, and contrary to law in violation of the Administrative Procedure Act.”

Threats to our water

Since my early days, I have relied on my friends at Trout Unlimited for their analysis, leadership and advocacy. It is no different in this case.

“The E.P.A.’s new policy comes with a price tag,” Chris Wood, president and CEO of Trout Unlimited, wrote in a recent op-ed in the New York Times with National Wildlife Federation CEO Collin O’Mara and former U.S. Fish & Wildlife Service director Dale Hall.

“When the E.P.A. stops protecting these streams and wetlands, states will have to foot the bill for regulatory oversight; many states may decide not to step in at all. When developers fill in wetlands, local communities will be on the hook for cleaning up more frequent flood damage. When headwaters are polluted, cities downstream will pay to treat their drinking water.”

Check out TU’s Clean Water Rule Update: April 2020 for more details. Read, Changes to the Clean Water Rule have big impacts on the ground for a look at why the rule is bad news for those of us who love our small stream fishing.

Pebble Mine Update: What the Army Corps Did and Didn’t Do

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If you are following the saga of the proposed Pebble Mine in Bristol Bay, Alaska, you would be forgiven if you thought recent action by the U.S. Army Corps of Engineers (USACE) was the death knell for the proposed mine.

On August 24, the USACE released a letter to the Pebble Limited Partnership. The U.S. Army’s press office proclaimed, “Therefore, the Corps finds that the project, as currently proposed, cannot be permitted under section 404 of the Clean Water Act.”

In reality, the USACE essentially kicked the can down the road. The letter to the Pebble Limited Partnership informed them, “As part of the [Record of Decision] the [Alaska District of the USACE] made Clean Water Act Section 404(b) (1) factual determinations that discharges at the mine site would cause unavoidable adverse impacts to aquatic resources and, preliminarily, that those adverse impacts would result in significant degradation to those aquatic resources.” The Alaska District of the USACE determined that Pebble Limited Partnership would need mitigation measures within the Koktuli River Watershed, where the mine potentially will be located, for all direct and indirect impacts on aquatic resources caused by the mine’s discharges.

The letter went on to outline the ways those damages could be mitigated:

There are three approved mechanisms for providing compensatory mitigation, which include mitigation banks, in-lieu fee programs, and permittee-responsible mitigation with preference, in that order. Your mitigation plan may include a combination of means and mechanisms but must comply with all required components of Rule and be found sufficient to offset the unavoidable adverse impacts to the aquatic resources identified above.

Some reactions critics of the project from both sides of Capitol Hill were less than laudatory of the action. Senator Joe Manchin (D-WV) stated :

A mitigation plan to make up for unavoidable damage from the Pebble Mine is not enough. The Final Environmental Impact Statement for Pebble Mine did not assure me the pristine Bristol Bay region of Alaska, which is home to the world’s most productive salmon fishery, supports 14,000 jobs and generates $1.5 billion of revenue annually, would be sufficiently protected. I again urge the Administration to completely veto a Clean Water Act permit for this project.

Rep. Jared Huffman (D-CA) said :

Delaying the permit for the Pebble Mine is welcome news, but let’s be clear: the only reason this environmental atrocity came this close to happening is because the Trump administration is a favor factory for polluting industries. The previously rejected permit was revived and fast-tracked by this administration, and the only reason they finally hit the pause button is because – thankfully – some individuals close to President Trump made a personal appeal. We can welcome the outcome, but let’s not confuse any of this with environmental stewardship or good government.

This letter did not come as a surprise to the Pebble Limited Partnership. The company responded:

The letter we received today is a normal letter in the permitting process and we are well into an effort to present a mitigation plan to the USACE that complies with the requirements of their letter. A clear reading of the letter shows it is entirely unrelated to recent tweets about Pebble and one-sided news shows. The White House had nothing to do with the letter nor is it the show-stopper described by several in the news media over the weekend.

Now that dust has settled, let’s take a look at the facts included in the Corps’s letter, which should send chills down the spine of anyone who still thinks it is a good idea to permit this mine.

The letter tells us what is at stake:

Therefore, the District has determined that in-kind compensatory mitigation within the Koktuli River Watershed will be required to compensate for all direct and indirect impacts caused by discharges into aquatic resources at the mine site. Direct and indirect impacts at the mine site total 2,825 acres of wetlands, 132.5 acres of open waters, and 129.5 miles of streams.

The District has also determined that compensatory mitigation is required for unavoidable adverse impacts to aquatic resources from discharges associated with the transportation corridor and the port site. Direct and indirect impacts associated with the transportation corridor and port site total 460 acres of wetlands, 231.7 acres of open waters, and 55.5 miles of streams.

Let me help you with the math. Here are the totals for what’s at risk:

  • 3,285 acres of wetlands
  • 364 acres of open waters
  • 185 miles of streams

So somewhere, somehow, the Pebble Limited Partnership is going to mitigate all that damage. As they said, “We will share more details of our initial plan as they become more defined.”

They have until November 20 to do that, although they seem to think it may happen sooner. “Based on our understanding of the substance of the letter, our discussions with the state, our substantial work in the field and our discussions with the USACE we believe our final Comprehensive Management Plan submission will be submitted within weeks and will satisfy all of the requirements of the letter.”

We shall see.

Here’s the rub. Bristol Bay is unique. How will that uniqueness be mitigated? How do you mitigate the loss of the world’s best salmon run?

On August 31, a letter from Representatives Huffman and Peter DeFazio (D-OR) and signed by 31 of their colleagues to EPA administrator Andrew Wheeler, made the point, “There is no level of compensatory mitigation that would be sufficient to address the mine’s irreversible harm to the pristine environment that exists in Bristol Bay.”

The letter went on to ask “that the EPA exercise its authority under the Clean Water Act and oppose the flawed Environmental Impact Statement.”

Let’s hope the administration comes to realize that, as the late Senator Ted Stevens of Alaska said, “This is the wrong mine in the wrong place,” and vetoes the Clean Water Act permit. If the USACE and Environmental Protection Agency don’t see the light, hopeful Congress will make them feel the heat.

UPDATE (Oct 30, 2020): Tim Sohn writing in Outside Online, gives a terrific, recap, analysis and update on the state of play in Bristol Bay.
https://www.outsideonline.com/2418304/pebble-mine-tapes-election-explainer.

Your comments questions and other witty repartee are welcome around the Campfire.

Note: This article (pre update) originally appeared on the Marine Fish Conservation Network’s From the Waterfront blog.