July 17, 2023
Jennifer Mercer
US Army Corps of Engineers, Alaska District
Regulatory Division (1145)
CEPOA-RD
Post Office Box 6898
JBER, Alaska 99506-0898
Jennifer.A.Mercer@usace.army.mil
REFERENCE NUMBER: POA-2023-00115
We appreciate the opportunity to comment on the application for a permit to detrimentally affect the waters of the US for the purpose of providing JT Mining, Incorporated (JTMI), a subsidiary of HighGold Mining, Incorporated, access to the Johnson Tract mineral deposit. The project involves construction of an access road, expanding an airstrip, creating a parking lot and multiple pads, installing bridges and culverts, creating settling ponds, and filling wetlands, amongst other activities. The primary waterway that will be affected is Johnson River, as well at least one tributary to Johnson River and nearby wetlands.
We submit these comments to request the US Army Corps of Engineers (Corps):
1) assess the potential effects of the proposed action, as well as the effects of reasonable, foreseeable future actions that would not occur but for the proposed action, upon federally designated critical habitat for two marine mammals where the Johnson River discharges into Cook Inlet, and
2) schedule and conduct public hearings in Homer and/or Anchorage, with a virtual attendance option to allow adequate public input on the proposed project.
1. Request for Consideration of Potential Effects to Beluga Whale and Sea Otter Critical Habitat
The Corps’ Public Notice of Application for Permit concludes there are no threatened or endangered species known to use the project area. However, this conclusion overlooks that the Johnson River discharges directly into Cook Inlet, in a location that is federally designated critical habitat for both the endangered Cook Inlet beluga whale (Delphinapterus leucas) distinct population segment (DPS), and the southwest Alaska DPS of the northern sea otter (Enhydra lutris kenyoni).
Cook Inlet beluga whale critical habitat
Critical habitat for endangered Cook Inlet beluga whales was designated in 2011 and is comprised of two areas of Cook Inlet. Per the final rule (76 FR 20179, April 11, 2011), Area 2 “includes nearshore areas along the west side of the Inlet and Kachemak Bay on the east side of the lower inlet… It includes both near and offshore areas of the mid and upper Inlet, and nearshore areas of the lower Inlet. Due to the role of this area as probable fall feeding areas, Area 2 includes Tuxedni, Chinitna, and Kamishak Bays on the west coast and a portion of Kachemak Bay on the east coast.” Johnson River discharges into Cook Inlet between Tuxedni and Chinitna Bays, clearly in critical habitat Area 2.
In defining critical habitat, the National Marine Fisheries Service (NMFS) identified five primary constituent elements essential to the conservation of Cook Inlet beluga whales.
Intertidal and subtidal waters of Cook Inlet with depths <30 feet (MLLW) and within 5 miles of high and medium flow anadromous fish streams.
Primary prey species consisting of four species of Pacific salmon (Chinook, sockeye, chum, and coho), Pacific eulachon, Pacific cod, walleye pollock, saffron cod, and yellowfin sole.
Waters free of toxins or other agents of a type and amount harmful to Cook Inlet beluga whales.
Unrestricted passage within or between the critical habitat areas.
Waters with in-water noise below levels resulting in the abandonment of critical habitat areas by Cook Inlet beluga whales.
Of particular importance in this project is the “primary prey species” element because, although the Corps omitted consideration of effects to critical habitat, it did specify that “The project area is within mapped [Essential Fish Habitat] for coho salmon (Oncorhynchus kisutch) and chum salmon (Oncorhynchus keta),” two species which are elements of Cook Inlet beluga whale critical habitat. In its Recovery Plan for the Cook Inlet Beluga Whale[1], NMFS listed reduction in prey as a threat to the species’ recovery, and protecting habitat that supports foraging of Cook Inlet beluga whales is identified as a priority action in the Species in the Spotlight Action Plan 2021-2025 for Cook Inlet belugas[2]. The Corps should analyze effects of the project on these prey species to ensure there are no detrimental effects to this element of Cook Inlet beluga whale critical habitat, which could further impede beluga recovery.
Also of note is that waters of beluga critical habitat should be “free of toxins or other agents of a type and amount harmful to Cook Inlet beluga whales.” The Corps must consider the potential, regardless of how small, of a catastrophic failure of settling ponds resulting in contamination of Johnson River, or other waterways, which may wash those contaminants downstream into Cook Inlet beluga whale critical habitat.
Alaska DPS of Northern Sea Otter Critical Habitat
Critical habitat for the threatened southwest Alaska DPS of the northern sea otter (Enhydra lutris kenyoni) was designated in 2009. Per the final rule (74 FR 51988, October 8, 2009), the US Fish & Wildlife Service (USFWS) designated critical habitat in areas that were occupied at the time of listing and contain sufficient primary constituent elements to support life history functions essential to the conservation of the DPS, and which may require special management considerations or protection. The USFWS designated five units as critical habitat for the southwest Alaska DPS of the northern sea otter. Of applicability here is Unit 5: Kodiak, Kamishak, Alaska Peninsula Unit. This unit ranges from Castle Cape in the western part of the unit to Tuxedni Bay in the eastern portion of the unit, and contains all the primary constituent elements essential for the conservation of the species. Johnson River flows into Cook Inlet just south of Tuxedni Bay; thus this portion of Cook Inlet is part of the northern sea otter critical habitat.
In the Public Notice, the Corps indicated its decision whether to authorize a proposal “should reflect the national concern for both protection and utilization of important resources” and that “[a]ll factors, which may be relevant to the proposal, must be considered including cumulative effects thereof.” Included in the cumulative effects assessment are conservation, fish and wildlife values, as well as the needs and welfare of the people. In this case, this specific project is a first step in a larger project to enable access for a mine that may not occur but for the access proposed in this permit application. In its cumulative effects assessment, the Corps should consider downstream effects in space and time that may occur to critical habitat for both the endangered Cook Inlet beluga whale and the Alaska DPS of northern sea otter, from both the proposed activities and those which would not occur in the future but for the approval of the proposed activity. To not consider potential impacts to these important resources would not be in the best interest of the public, as NMFS and USFWS have already determined that designation of critical habitat will enhance the nation's welfare by augmenting the Federal Government's ability to conserve these species and ensuring Federal actions do not destroy or adversely modify habitat critical to that end.
2. Request for Public Hearing(s)
The specific activity proposed is only a small part of a larger mining plan. The Corps’ Public Notice for comment was only open for 30 days in the middle of prime “out-of-the-office” season in Alaska, where many people interested in, and potentially affected by, this project may be out fishing, hunting, or recreating. Allowing only 30 days for the general public to become aware of this issue, learn about and understand the complex regulatory framework and technical project details, and then submit written comments in such a short time can create a significant public burden and lead to incomplete, or inaccurate, comments. For meaningful public participation, the public must be provided with an opportunity to hear from and ask questions of the government in a public hearing. We recommend a hearing be held in Anchorage and/or Homer, with virtual participation opportunities for those who cannot travel to these locales. Inherent with the request for a public hearing, is a request for the public comment period to be extended to a meaningful period beyond the hearing to allow for informed written comments.
We thank you for your consideration of our requests.
Sincerely,
Nicole Schmitt
Executive Director
[1] NMFS. 2016. Recovery Plan for the Cook Inlet Beluga Whale (Delphinapterus leucas). National Marine Fisheries Service, Alaska Region, Protected Resources Division, Juneau, AK. Available at https://repository.library.noaa.gov/view/noaa/15979
[2] NMFS. 2021. Species in the Spotlight Priority Actions 2021-2025, Cook Inlet Beluga Whale (Delphinapterus leucas). National Marine Fisheries Service, Silver Spring, MD. 18pp. Available at https://media.fisheries.noaa.gov/2021-04/SIS%20Action%20Plan%202021_Cook%20Inlet%20Beluga-FINAL%20508.pdf
