Buckhorn Bulletin November 2006 Vol 2 No.9

OHA Appeals Ecology's SEIS for Proposed Mine
Washington State Department of Ecology ignored criticism by EPA, Fish and Wildlife, the Colville Tribes and Okanogan Highlands Alliance (OHA) and approved the Supplemental Environmental Impact Statement (SEIS) on September 15th for the proposed Buckhorn Mine. The first permits were issued seven days later on September 25-26 including the Notice of Construction. OHA had 21 days to appeal Ecology’s decision and on October 13th submitted an appeal of three permits and the SEIS. The complaint lists over thirty issues including failure to mitigate the impacts to water rights, streams and wetlands and failure to accurately predict the impacts of the mine proposal. OHA has requested a stay of construction activities.
The SEIS fails to address groundwater contamination and permanent drying up of wetlands and streams that the mine would cause, and does not offer adequate mitigation for the impacts it does identify.
The underground shafts proposed to mine the gold, would cause a permanent shift in the way water flows off the mountain adversely affecting people with senior water rights and, have the potential to pollute groundwater for generations to come. The SEIS makes no mention of the long-term impact on streams associated with dewatering the mountain to allow mining, degrading groundwater quality, and the changes in water quantity and quality associated with discharge of treated mine water.
Ecology has also failed to address the issues that caused the previous mine to be rejected by the Pollution Control Hearings Board in January 2000.
The appeal includes a Construction Stormwater General Permit, Washington State Department of Natural Resources (DNR) reclamation permits, a change in a water right, and the SEIS.

OHA filed an appeal on October 13th that asserts our members would be harmed by; the approval of the water withdrawal of water that is unavailable, approving the construction of the mine site, approving a reclamation plan that will permanently impact aquatic resources, and result in a permanent reduction in surface and ground water flow that will result in moderate, long term and permanent damage to seeps, springs, wetlands, streams and their associated habitat, fish and wildlife and the perpetual and unmitigated discharge of contaminated runoff into the surrounding ground and surface waters.
OHA will ask for a stay of construction, a determination that the SEIS is inadequate, a determination that the Newman water right Report of Examination be reversed, the Construction permit and the Reclamation permit vacated.
Specific permit appeal points include:

• The Permits are based on an inadequate SEIS.
• The Water right enlarges the existing water right and therefore impairs existing downstream rights and will be detrimental to the public interest.
• The Surface Mining Reclamation Permit (SMRP) does not meet the reclamation and closure objectives of the law for vegetative cover and water conditions within two years of the completion of mining and the impacts would not be adequately mitigated.

Specific inadequacies of the SEIS:

• Ecology should have prepared a new EIS.
  
• The SEIS fails to include an alternative with lower impacts.
• The SEIS makes no mention of the long-term impact on streams associated with perpetual pumping, impairment of on-site groundwater quality, and changes in water quantity and quality associated with discharge of treated mine water.
• The SEIS fails to adequately consider the leaching of metals from development rock and ore stockpiles. Only acid generation is considered.
• The effects of discharge of treated effluent on groundwater and surface water quality were not adequately considered in the SEIS.
• The SEIS assumption that backfilling will prevent acid generation is unfounded.
• The SEIS fails to address, or even recognize that groundwater within the capture zone would be contaminated and impacted for the foreseeable future.
• The SEIS discussion of mitigation relies too much on adaptive management.
• The SEIS fails to adequately analyze and quantify the headwaters, seeps, springs, streams, fish, and other aquatic resources that will be impacted by dewatering and flow reduction.
• The SEIS fails to adequately analyze and understates the impacts that will be caused by dewatering and flow reduction.
• The SEIS fails to adequately analyze the amount and affect of contamination from the project on riparian areas.
• The SEIS fails to adequately analyze and describe the existing species and biological tolerances for species that will be impacted by dewatering and flow reduction.
• The SEIS fails to adequately analyze and quantify the loss of benthic macro-invertibrates expected due to flow reduction and dewatering and fails to quantify the impacts of these losses on species dependent on the macro-invertibrate population.
• The SEIS fails to adequately identify the potential Endangered, Threatened, and Sensitive species of plants and animals that may be present in the area and their locations so they can be avoided or populations moved.
• The SEIS fails to identify seeps and springs that will be impacted due to lack of hydraulic head.
• The SEIS fails to describe the location, source of hydrology, and functions of each wetland, seep and spring.
• The SEIS fails to adequately identify in detail what the impacts will be from moving the drainage divide, and insufficient mitigation has been offered to compensate for shifting water to one basin at the expense of another.
• The SEIS fails to adequately evaluate the functions of the wetlands streams and seeps, especially with respect to mitigating for the loss of these resources as a result of both direct and indirect impacts.
• The SEIS fails to compare the expected impacts to aquatic resources to the benefits that will be provided as mitigation. Without this comparison it is impossible to determine if the anticipated permanent impacts will be mitigated.
• The SEIS fails to adequately model groundwater flow and relies on a flawed steady state model.
• The SEIS does not accurately or consistently describe the proposed development. Critical assumptions differ among supporting documents.
• When more permits are issued and documents made public OHA will amend and/or supplement these issues.

Colville Tribes oppose Mining on Buckhorn
The Colville Business Council in a 9-0 vote passed the following resolution:
Whereas, it is the recommendation of the Natural Resources Committee that the Colville Business Council go on record in its vehement opposition to any mining on the Buckhorn Mountain, and the Council fully supports and is in agreement with the efforts of the Okanogan Highlands Alliance in their efforts to prevent this mine from becoming reality.
Therefore, be it resolved, that we, the Colville Business Council, meeting in special session this 19th day of October , 2006 acting on behalf of the Colville Confederated Tribes, Nespelem, Washington, do hereby approve the above recommendation of the Natural Resources Committee.

Aquatic Resources Mitigation Plan (ARMP)
The use of the word mitigation in Crown/Kinross mine proposal is the epitome of double-speak, it is premised on the misconception that one can compensate for the projected damage to healthy headwaters and streams.
It begins with a definition of mitigation that is skewed. Most people would agree that to mitigate is similar to the dictionary definition, to make or become less severe or intense; moderate. According to Ecology mitigation includes (a) avoiding the impact altogether by not taking a certain action or part of an action (b) minimizing impacts by limiting the degree or magnitude of the action and its implementation; (c) rectifying the impact by repairing, rehabilitating, or restoring the effects environment; (d) reducing or eliminating the impact over time by preservation and maintenance of operations during the life of the action; and (e) compensating for the impact by replacing or providing substitute resources or environments.
The last definition (e) is how most people would describe mitigation. Most of the rest are requirements of the law and should not be considered mitigation. Ecology states that the objective of the mitigation plan is to mitigate for the temporary changes/reductions in streamflow on Toroda, Nicholson, and Myers Creeks and on springs, seeps and wetlands due to operations of the Buckhorn Project.
The SEIS lists 158 mitigations but only a fraction of them would be considered mitigation by a normal or common definition of the term.
Usually a mitigation would be tied to an impact and some kind of ratio would apply such as 10:1 based on the value of the public interest in clean water and healthy wetlands that are precious and cannot be easily replaced. Ecology's overly broad definition of mitigation blurs the clear lines of compensation for unavoidable impacts with required measures undertaken to comply with water quality, quantity, waste discharge, reclamation, land-use and other laws. It seems that mitigation is offered as a package and although as of this writing, even though construction has begun, the package is not complete, the package is supposed to mitigate all impacts.
So if we try to wade through the morass of documents and get to what the mining company is offering to compensate for the predicted permanent shift in the hydrology of the mountain, degradation of water quality and other impacts related to the mine.
We find the big ticket items are supposed to be the enhancement of the Pine Chee wetland and restoration of Myers Creek near the Canadian border. These are the same elements that Battle Mountain Gold offered last time to which the PCHB responded, "The ARMP focuses on preservation and limited enhancement of off-site resources, not on actual compensation for or replacement of lost resources.... Many of the resources proposed are already in existence, and are already protected by existing laws. Since these sites already provide some valuable function to aquatic resources, the additional protection of these resources as proposed in the ARMP provides no real compensation for the impacts from mining operations." Ecology continues to ignore the PCHB by stating in the SEIS "No response necessary" to their concern.
Other elements include relinquishing some grazing water rights on Myers Creek and pumping water from an existing well near Myers Creek into Myers Creek if water flows at the Canadian Border fall below what is required by court order.
Part of the mitigation package was to undertake a stream enhancement project at the lowest reach of Maria Creek but it appears that cultural resources important to the Colville Tribes were found in the area. Kinross consultants suggested covering them in shotcrete instead of digging them up but that plan did not sit well with WDFW.
Other mitigation offered are; culvert replacements, armoring cattle crossings, and pumping treated mine water into Marias and Nicholson Creeks; a cattle water tank and some cattle fencing near Marias Creek; water pipes for wildlife (guzzlers) in dewatered seeps and springs' temporary non-use of some water.
The important fact to remember is that Ecology has failed to completely and accurately inventory the aquatic resources which makes it very difficult to compensate for the impacts.

Adaptive Management Plan
Self monitoring, self regulation, and self enforsement
If something happens, someone will do something, sometime....maybe
One of the major flaws in Ecology's SEIS is it's reliance on adaptive management or more accurately a plan that is titled adaptive management but in reality has absolutely no mechanism to adapt to changing situations. It could be more accurately characterized as a monitoring plan. Adaptive management should be an active systematic process for continually improving management policies and practices by sequential learning from the outcomes of operational programs. It should be designed to experimentally compare selective policies or practices by evaluating alternative hypotheses. Ecology and Kinross want to redefine adaptive management and use it as a basis for the entire mine plan.
To put this plan in perspective, Ecology relies on this adaptive management plan for most aspects of the mine proposal including:

• Dewatering impacts to seeps and springs
• Dewatering and water supply impacts to steamflow
• Fine sediment deposition and water quality changes to Marias Creek from the mine access road
• Aquatic habitat improvements to mitigate for streamflow impacts from mine dewatering
• Development rock management
• Water treatment plant operations
• Upland habitat protection, enhancement and management
• Wildlife management along haul road
• Kettle river tailings impoundment

The adaptive management plan is being relied on to evaluate the monitoring data and compare it to what is predicted in the SEIS and to evaluate compliance to the requirements of various permits including:

• The NPDES for the collection, treatment and discharge of mine water,
• The water rights for the use of surface water and ground water supply and mitigation,
• The construction and operational stormwater,
• The hydraulic permit approval for the construction and maintenance new culverts and stream restoration,
• The permits on National Forest Land,
• The waste discharge and Dam Safety for the tailings impoundment

Adaptive management details include an action threshold and indicates who would take what action. The specific plans have three phases;

• Phase I (early action) based on 50% of predicted impact: Kinross would review data and determine the likelihood predicted impacts would be exceeded. If they think there would be a potential for greater impacts they would inform agency in their annual report. Take voluntary action and continue monitoring. The agency would take no action.
• Phase II (planning) based on 80% of predicted impact: If Kinross decides monitoring suggests impacts would exceed predictions, they would then develop a Contingency Plan. The agency would meet with Kinross and develop a plan.
• Phase III based on 100% of predicted impact: Kinross would implement Contingency Plan. The agency would oversee contingency actions.

NPDES Comments NEEDED by January 1
(National Pollutant Discharge Elimination System)
Modeling shows that there is a strong likelihood that as the proposed Crown/Kinross mine would fill with water after mining, groundwater would not meet water quality standards. Kinross proposed to operate a treatment facility on Buckhorn Mountain as needed, including winter, pumping the treated water back into the ground until there would be enough water to dilute the contamination.
Cleaning up contaminated groundwater can be costly and technically infeasible. The costs are generally borne by taxpayers.
The Hydrologic Monitoring Plan for closure is extremely vague on contingency plans and leaves far too much to the discretion of Kinross for self-monitoring, self-regulation and self-enforcement. Monitoring could be needed permanently.
Ecology is confident that they can hold enough bond that if after 10 years the groundwater still does not meet standards, they can clean up the problem. The PCHB addressed this approach to permitting head on back in January 2000 when the open-pit was predicted not to meet water quality standards.
"The only real assurance we have is the proposed bonding that the state may rely on to enforce environment laws in the future. This approach is tantamount to entering a busy interstate highway on an exit ramp against the traffic. The availability of insurance in that circumstance is no more comforting than the proposed bonding here. The focus of our environmental laws must be on preventing pollution and habitat degradation. It is not legally sufficient to proceed with the proposed mine without much more specific knowledge of the potential impacts from the development and meaningful means of preventing and protecting against the adverse consequences of the development. The long-term engineered solutions proposed in this case are legally insufficient.”

Comment suggestions:

• The permits ground and surface water monitoring is insufficient to ensure that water quality will be protected.
• The permit does not seem to include any meaningful evaluation of monitoring data to determine if timely corrective action is needed.
• The provisions of the Adaptive Management Plan would more than likely perpetuate water quality and quantity problems.
• Unlined stormwater infiltration should be considered a discharge and be regulated.
• Water quality predictions differ in various documents.
• The permit fails to protect groundwater from contamination.
• The permit fails to adequately protect Marias Creek from discharges of sediment and salts from Marias Creek Road.
  

EPA rating for FS DEIS: Environmental Concern-Insufficient Information
While the EPA was pleased that the USDA Forest Service decided to do an EIS on the haul road and other facilities for the proposed Buckhorn Mine, they expressed concern that the draft EIS was not consistent with the State's SEIS. They criticized the lack of coordination between the two processes limiting EPA's ability to make relevant comments about the documents completeness or predicted impacts.
EPA raised concern that the document was unclear about what mechanism would enforce implementation of mitigation to offset impacts to aquatic resources.

EPA Questions SEIS and Mitigation Plan
EPA sent a letter to Ecology dated October 30, 2006 raising concerns regarding significant unanswered questions with the SEIS. The EPA raise particular concern regarding the SEIS indication that stream water and ground water reductions in quality and quantity that could impact wetland and aquatic resources and the need for adequate monitoring and implementation of water augmentation. They also expressed concern as to whether the mitigation offered actually compensate for the lost headwater functions.
EPA raised concern that uncertainty remains in the impact analysis of the effects on water quality and quantity because of the limited field measurements. EPA question whether the wetlands and aquatic resources impacts and mitigation fully characterizes the indirect and secondary impacts to segments of headwater streams, wetlands, seeps, and springs and along the proposed Marias Creek road corridor. EPA would like an explanation of how the proposed mitigation compensates for the lost headwater functions.
EPA sataes that; "The FSEIS does a poor job of disclosing the potential for impacts from failure of an expanded tailings facility."
EPA raised concern with conflicting information in different documents regarding water management.
The EPA asks that the SEIS discussion of the limitations of the groundwater model to accurately predict impacts to specific locations along streams and springs should be expressed in the section describing the infiltration gallery.
EPA points out that that the worst case water quality prediction list exceedences above background conditions for all 14 metals in the table.
EPA expresses the opinion that ground and surface water monitoring does not seem sufficient.