On June 28, the Alaska Department of Natural Resources granted 12 water rights permits to the proposed Donlin gold mine. The road to these permits has been paved with complaints from six Yukon-Kuskokwim Delta tribes, who say that their subsistence lifestyle will be negatively impacted by the mine’s completion.
The 12 water rights permits that were approved by the Alaska Department of Natural Resources this month are wide ranging in purpose. But essentially, bundled together, they’ll let Donlin pump up ground, river, and creek water.
“It will basically take a lot of this water out of Crooked Creek and it needs those state water rights permits to do so,” said Maile Tavepholjalern, a senior attorney with Earthjustice.
Earthjustice is the environmental law firm representing the six Y-K Delta tribes in their legal battles against the proposed mine. The tribes are the Orutsararmiut Native Council, the Chuloonawick Native Community, The Native Village of Eek, Tuluksak Native Council, Kwethluk IRA, and the Kasigluk Traditional Council.
The water Donlin pumps out will be used for a range of mining operations, like providing running water to staff restrooms and kitchens, and drying out the ground for mine digging. Attorney Tavepholjalern likens the process to digging in a sandbox.
“It's very difficult to dig a deep hole if the sand is wet, but it's a lot easier if it's dry. So that's what Donlin has to do: it has to pump up water in order to go deep,” said Tavepholjalern.
The Alaska Department of Natural Resources, or DNR, first announced its intent to grant the permits back in December 2020 and opened up a 15 day public comment period. ONC opposed the comment period on the grounds that it was too short, and eventually DNR did too.
“They recognized that there was some deficiency, and then they opened the second comment period,” said Tavepholjalern.
By the time the second 15 day comment period opened, Tavepholjalern’s firm was representing not only ONC, but five other Y-K tribes who are speaking out against the mine. The tribes opposed the water rights permits, saying that removing that much water from the area could hurt the region’s water supply and water-dwellers.
“The tribes have worries about contamination, destruction of salmon habitat, and concerns about clean water being then turned into mine process water,” said Tavepholjalern.
Other tribal concerns come from a lack of consultation.
“Those concerns just under underscore the significance and the importance of tribal consultation, something that was completely lacking here, and that tribes have repeatedly requested and the state has denied,” added Tavepholjalern.
DNR wrote in its decision that the lack of consultation is not against the law in its eyes. It also said that it believes the public comment process was sufficient for Tribes to express their viewpoints.
Government-to-government consultation is standard practice at the federal level, affirming tribal sovereignty, but Alaska state agencies are not required to practice government-to-government consultation.
DNR also wrote in its decision that it believed water quality and fish habitat would not be damaged. DNR wrote that it in part based this viewpoint on the issuance of a separate state water quality certificate that the Alaska Department of Environmental Conservation commissioner approved last month. ONC has filed an appeal against that decision in the state superior court, and plans to take it all the way to the Alaska Supreme Court if need be.
DNR has given the tribes a 20 day appeal period for the dozen water rights permits. Since Earthjustice received the letter on July 2, the appeal period will expire on July 22. At this time, the tribes have not said if they plan to appeal or not.
For its part, Donlin Gold said that it applauds the Alaska Department of Natural Resources for the “thorough review process” and the decision to grant the permits.
Editor's note: Information has been added to this story about the role of government-to-government consultation in federal and state permitting processes.