The Future of Alaska's Antidegradation Policy Or How Not to Foul Our Nest

1. The Future of Alaska's Antidegradation Policy Or How Not to Foul Our Nest Guy Archibald Mining and Clean Water Coordinator Southeast Alaska Conservation Council www.seacc.org

2. Overview • The State of Alaska is developing a procedure to evaluate under what circumstances industry is permitted to discharge pollutants to the ocean and rivers of Alaska. • It is called Antidegradation • I am here to provide you with the tools to be sure Native voices are heard during this process. • The State of Alaska’s final policy should reflect the values of the people of Alaska. • Quick review of Alaska’s Antidegradation Policy • History of actions taken so far • Pitfalls of differing values and definitions • Opportunity for Native involvement • Present policies and definitions that reflect Native values from other Tribes

3. Water is life.We are the people who live by the water. Pray by these waters. Travel by the waters. Eat and drink from these waters. We are related to those who live in the water. To poison the waters is to show disrespect for creation. To honor and protect the waters is our responsibility as people of the land. • “Like Tributaries to a River,”translated from Anishinaabe (Ojibwe People) by Marlene Stately, The Winona LaDuke Reader, 2002

4. 26% of rural Alaska Native homes do not have access to safe potable water. (ANTHC) Water is fundamental for life and health. The human right to water is indispensable for leading a healthy life in human dignity. It is a pre-requisite to the realization of all other human rights. The United Nations Committee on Economic, Cultural and Social Rights, Environment News Service, 27 Nov 02

5. Antidegradation is a policy designed to allow for economic development while protecting water quality • Inherent in the policy is 4 major assumptions • 1. Economic development results in some kind of waste stream. • 2. That waste will either directly or indirectly end up in the air or water. • 3. Economic development should create local benefits and must be encouraged. • 4. Developers have the right to reduce water quality (dispose of their waste) as long as they do not eliminate an existing use of the same water body.

6. What is the minimum Policy required ? The CWA requires that all States develop a plan that specify the procedures to determine: • when waters may be degraded by sources of pollution, • whether there are cost effective alternatives to a new or increased discharge, and • what social and economic benefit to the state would be necessary to justify any degradation. • Criteria for nomination and designation of Outstanding National Resource Waters (ONRW or “Tier 3”), which allows for special protections.

7. How does the State Protect our water? Designated uses ‐how the water is used Marine Water Uses Harvesting for consumption of raw mollusks or other raw aquatic life, Aquaculture, Contact Recreation, Seafood Processing, Industrial Uses, Growth and propagation of fish, shellfish, other aquatic life, wildlife Freshwater Uses Growth and propagation of fish, shellfish, other aquatic life, wildlife Drinking Water, Recreation, Agriculture, Aquaculture Water Quality Limits or Criteria) Antidegradation (protect existing and designated uses of the waterbody) Provide for Outstanding National Resource Waters protection. (ONRW)

8. Water Bodies in Alaska • Tier 3 Water Quality ↓ Tier 2 Tier 1

9. The Permitting Process Antidegradation Review is Triggered by receipt of a discharge permit application

10. Antidegradation Review. The five prongs of pollution Prong 1: Evaluate whether the proposed degradation is justified by the economic and social benefits the project would bring. Prong 2:Reduced WQ won’t violate criteria. Prong 3:Resulting water quality will fully protect existing uses. Prong 4: The most effective and reasonable methods* of pollution prevention control and treatment will be applied to all wastes and other substances to be discharged. Prong 5: Wastes and other substances discharged will be treated and controlled to achieve the highest statutory and regulatory requirements. • *Note that this is not a defined term., it is a finding of balance between the effectiveness of the possible treatment and their cost, “as requiring the most effective methods may place an unreasonable economic burden on the applicant.”

11. What has ADEC done so far? • 1996, Alaska adopted its current antidegradation policy into the Water Quality Standards (18 AAC 70). • December 2007, ADEC started antidegradation Implementation Policy for the 2007-20010 Triennial Review. • October 2008 , ADEC contracted with Tetra Tech, Inc. to produce a report, titled • “Evaluation of Options for Antidegradation Implementation Guidance.” • http://dec.alaska.gov/water/wqsar/wqs/pdfs/Antidegradation_tetratech_final.pdf • July 2010, Interim Antidegradation Implementation Methods published. Available at: • http://www.dec.state.ak.us/water/wqsar/Antidegradation/docs/P&P-Interim_Antidegradation_Implemenation_Methods.pdf

12. What needs to be done Protecting the public resource needs to reflect public values Incorporate Traditional Environmental Knowledge Define criteria for ONRW’s and how they are to be protected Incorporate an alternatives analysis Add cultural and social impacts to the economic benefits review Industry responsible for the Burden of proof that uses will be protected Industry must divulge its business information Economic benefits must be local to water impacted, No watershed trading. Require a reservation of water quality between Tier 1 and Tier 2 Native cultural and spiritual values must be honored Picture by National Geographic

13. Become Involved Final Policy development is a high priority for the 2011-2013 Triennial Review by ADEC Work Group Concept Work groups could begin as early as this year http://www.dec.state.ak.us/water/wqsar/Antidegradation/docs/A-DWorkPlan.pdf Currently there are no Tribal organizations on ADEC’s list of stakeholders for workgroup participation Contact: Nancy Sonafrank Environ Program Manager II Alaska Department of Environmental Conservation (907) 451-2726 nancy.sonafrank@alaska.gov

14. Examples of Language Protective of Native Values Preamble “If the Department or Council determine, based on important economic or social development, that degradation may be allowed, in no event may degradation of waters interfere with or become harmful, detrimental or injurious to public health or welfare, recreation, safety, cultural, or spiritual values, fish and wildlife uses, livestock uses, or other existing uses.” (Confederated Salish and Kootenai Tribes) “The Tribes will promote a holistic watershed approach to management of the surface waters and will protect cultural and spiritual uses of water.” (Confederated Tribes of the Umatilla) “The Acoma people recognize that they are part of a larger community that includes the heavens, the ocean depths, the elements, and all species of plant and animal life. Our sense of unity with all assures our continued survival and gives rise to a duty to preserve and protect the air, water, and land for future generations.”

15. Definitions Waters: “The Tribes existence has been dependent on the ability of the land and the waters to provide natural resources for consumption, subsistence, cultural preservation, religious practice , sustainable economic development and that preserves the cultural integrity and survival of the Tribe”. (Grand Portage Tribe) Aesthetics: “A stream, river, lake, wetland or impoundment with an uncharacteristic beauty or which represents the traditional value system of the Grand Portage Band of the Chippewa.” Traditional Cultural Place: “ Because of its unique diverse plant and wildlife has a historic, cultural or religious significance and to protect the rights of Tribal members to carry on traditional cultural activities and to protect the wild plants and wildlife and other aspects of the natural environment that are important for carrying on traditional cultural activities.” (Seminole of Florida)

16. Designated and Existing Uses “Primary Contact Ceremonial Use: for the purpose of protecting quality of water specifically for ceremonial, cultural, holistic, religious and traditional purposes” (Pyramid Lake Paiute Tribe) “Ceremonial and Cultural Water Use is the traditional use of a river, stream, reach, lake for cultural purposes, such uses immersion, provision of adequate flows for the Boat Dance ceremony, and suitable water for ensuring the presence and consumption of anadromous salmonids.” (Hoopa Valley Tribe) “Existing Use means a use that has actually occurred in a surface water or ground water. (Ethnographic reports and oral histories are contained within the archives of the Cultural Resources Department and are proprietary in nature)”. (Hualapai Tribe)

17. ONRW Criteria “ All surface waters of the Tribe are currently designated as Waters of Exceptional Cultural Significance.” (Puyallup Tribe) Outstanding Tribal Resource Water- “due to cultural value, the presence of archeological or historic sites, ecological or biological features, scenic beauty, or other exceptional qualities of importance to the Tribe.” (White Mountain Apache) Outstanding Resource Water- “Waters of exceptional recreational, ceremonial, cultural or ecological significance. Waters supporting priority species as determined by the Lummi Nation.” ONRW Protections “Cultural or Religious Waters cannot be disturbed, injured or in any way jeopardize the continued existence of the unique diverse plant and wildlife used in the religious ceremonies and customs of the Tribe.” (Seminole of Florida)

18. Article 23 Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions. Article 25 Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard. (United Nations Declaration on the Rights of Indigenous Peoples signed by the U.S. 12/16/2010).

19. The scientific community is seldom looking at us as true scientists. We need to get the credit due us for letting the unknowing people know what is happening to Mother Earth.” (Bob Aloysius, Kalskag) Acrylic on canvas. Our Agreement: I will nourish your future generations -as long as you protect mine. Artist: Apayo Moore