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Response: BLM's policy is still to encourage mineral development on public lands open to mineral entry. The EIS displays a range of alternatives for analysis in managing mineral development on these lands. The alternatives allow for a reasoned decision to be made what changes, if any, should be made to the existing regulations for mineral development, multiple use, and the prevention of undue and unnecessary degradation.
Response: BLM recognizes that the public land affected by mineral activities is small compared to the total land administered by BLM. But where mineral activities occur, the amount of natural resource degradation can be highly destructive and have long-term impacts. Congress recognized this fact through the Federal Land Policy Management Act, which instructed BLM to manage public lands for mineral development and to ensure no unnecessary or undue degradation of public lands.
Response: The purpose of this EIS is to analyze the impacts of managing mineral development of locatable minerals on public lands open to mineral entry. Assumptions in Appendix E have been modified to reflect the loss of access and reduced mineral development from recent withdrawals. The assumptions and level of mineral activity described in Appendix E are what then drove the analysis of impacts in Chapter 3.
Response: The draft EIS tried to show separately the impacts of the regulations on exploration and mining. In response to public comments, we determined that the sections needed to be rewritten to more clearly show the distinctions between the two operations. (See Chapter 3, Mineral Resources of the final EIS.) The final EIS also includes several new mine models that define the smaller exploration operation and mining projects.
Response: BLM agrees. The draft EIS analyzes methods of meeting these goals through the alternatives presented. Post land uses will continue to be developed though the land use planning process. The process includes public participation and will be covered by the proper environmental documents. The Plans of Operations will also include environmental documents that analyze the proposed reclamation and how it relates to the post land use determined in the land use plan.
Response: This suggestion is outside the scope of the surface management regulations and was not addressed in the draft EIS. BLM recognizes the environmental benefits of remining and has in the past and hopefully in the future will be reviewing these actions on a case-by-case basis. But at the time of this writing, Congress, in cooperation with EPA and the Western Governor Association, was exploring this option under Senate Bill (S 1787)-the Good Samaritan Mine Cleanup Bill.
Response: The alternatives address several options for managing both open pit mining and the use of cyanide. See Chapter 2 of the draft EIS and final EIS.
Response: BLM and the National Resource Council study (NRC 1999) have recognized potential regulatory gaps. The alternatives present several options for dealing with these gaps, including exploration and its impacts. The current Proposed Action includes the provision of a Notice for exploration. BLM recognizes the fluid nature of exploration and the quick response times needed to continue a reasonable exploration program. But BLM must ensure, as directed by Congress, that no unnecessary or undue or degradation of public lands occurs.
Response: Your comment is noted. No mining is exempt from the proposed final regulations unless classified as casual use. All operations except casual use will be reviewed and bonded. Any mining will be conducted under a Plan of Operations. The regulations that will apply to a project will depend on its type, size, and location and will be determined by specific aspects of the project on a case-by-case basis. All operations, regardless of size, must prevent unnecessary or undue degradation.
Response: BLM's intent is to make the process as efficient as possible and maintain the requirements to ensure against unnecessary or undue degradation of public lands. We developed the alternatives to discuss the impacts of the methods proposed to ensure against such degradation. BLM will review operations on a site-by-site basis and should approve any environmentally and economically sound project.
Response: This type of operation has occurred in several locations on public lands. For example, the Alligator Ridge Mine in Nevada was developed under a Notice in 1983 and was not placed under a Plan of Operations until 1991. BLM agrees that this type of action is rare and should not take place today. Therefore, we have revised the final EIS to remove this statement.
Response: The final EIS analysis has been changed to show a difference between exploration and mining operations. The mine models and the alternative analysis have discussed a variety of operations and mineral types. But to discuss all of the mining and exploration methods in relation to all of the mineral commodities developed on public lands is unreasonable and does not result in any better analysis than a carefully selected variety. The final EIS has attempted to address mineral surface activities on public land and how they affect natural resources. The EIS discusses the mineral surface activities in the alternatives and analyzes these activities by their ability to prevent unnecessary or undue degradation of public lands for all mineral commodities.
Response: Congress has passed a different law-the Surface Mining Control and Reclamation Act (SMCRA)-for the surface management of the mining of coal, which BLM leases under the 1920 Mineral Leasing Act. Under SMCRA coal operations are held to a specific set of standards other than the general "necessary or undue degradation" standard set by the Federal Land Policy and Management Act for surface management of mining claims under the Mining Law of 1872. BLM has generated the proposed final regulations to carry out the intent of these laws and their standards. Coal and locatable minerals regulations carry basically the same mission of surface management. But because of difference in laws and public comments, the regulations differ enough to warrant separate standards.
Response: BLM encourages the small miner and prospector to continue their work in locating mineral deposits.
Response: The proposed final regulations have been written to accommodate all types of mineral activities on public land. Each type of operation other than causal use will be reviewed and bonded to ensure against unnecessary or undue and degradation of public lands. BLM recognizes that sizes and types of operations differ, and the level at which a performance standard must apply will be based on a site-specific operation and the resources affected by that operation.
Response: The 43 CFR 3809 regulations have always had performance standards. The current regulations' standards are outlined in 43 CFR 3809.2 and 43 CFR 3809.3. These standards have been expanded with BLM policy changes directed under BLM instructional memorandums (IMs). Some of these changes include the BLM cyanide management policy and the acid rock drainage policy. The Proposed Action would take the current policy standards and incorporate them into the regulations. The proposed final regulations also include more standards and definitions in the "unnecessary or undue degradation" clause.
Response: The EIS team members who developed the analysis in the EIS are listed in Chapter 4. In response to public comments, more-detailed information on team member qualifications has been added to this list.
Response: This approach can be used with the current and proposed final regulations. The proposed final rule does not dictate how industry and BLM would develop Plans of Operations. It states only the general information needed to complete the review of the proposed operation and the standards the operation must meet during and at the end of the operation. Any contingency alternatives should be a part of the National Environmental Policy Act (NEPA) process and are highly recommended by BLM and the Council on Environmental Quality.
Response: We received BLM data for this EIS under a general information request from each state and/or from the public land records. But our data request did not include information on who received notices of noncompliance. Your suggestion on using the notice of noncompliance information for analysis, though, was outlined in the draft EIS under each alternative. Notices of noncompliance are typically preceded by several visits or letters from BLM outlining the potential problem before a notice of noncompliance is issued. Once operators receive such notices, they have a certain period of time to take corrective actions. The EIS team members have found that some operators get more than their fair share of notices of noncompliance but that in general most companies usually handle the potential concern before BLM issues a notice of noncompliance. We expect this type of interaction and compliance to continue. Also, please note that we cannot find where you came up with the figure of 31,050 to 49,680 acres under Notice level activity in noncompliance that were left unreclaimed. Table 3-6 of the draft EIS showed that there were currently 181 unresolved or outstanding notices of noncompliance for Notice-level operations. Even at and average disturbance of 2.4 acres per Notice, this amount would represent no more than 436 acres left unreclaimed, which is very close to the figure referenced in the NRC report.
Response: This is not an issue addressed in the draft EIS and is outside the scope of this rulemaking process. The 3809 regulations are for the surface management of operations conducted under the Mining Law. If the operator has a legitimate and valid right to conduct the activity under the Mining Law, then the regulations are applied to make sure the operation does not result in unnecessary or undue degradation. BLM has not added anything in the final rules on millsite determinations. But operators that are not conducting operations under the Mining Law are subject to other BLM land use regulations. Such situations would have to be evaluated on a case-by-case basis according to BLM policy.
Response: If an operator is unwilling or unable to fulfill the requirements of reclamation under a Plan or a Notice, the process of reaching compliance can take a long time. Under the current regulations the operators of Notice-level operations do not have to submit bond. If such operators do not reclaim the surface disturbance, BLM follows the current noncompliance process. This process requires BLM to try to get the operator to complete the reclamation before issuing a notice of noncompliance. Once the notice of noncompliance is issued, the operator has a certain period of time to rectify the concerns. If the operator still does not comply, the case must go to the Department of Justice for review. If the workload of the Justice Department is small, it can then take the case to federal court. This is a long process and very difficult. Table 3-6 of the draft EIS shows the instances of active noncompliance. All these are held up, and no reclamation is being completed. These unreclaimed Notice- and Plan-level operations constitute unnecessary or undue degradation of public lands.
Response: The number of Notices, Plans of Operations, and notices of noncompliance for the draft EIS were projections of an average/year basis from the past 17 years into the future for 20 years. The assumption for analysis stated that we expect the level of activity to remain the same as during the past 17 years since the 3809 regulations were first adopted. For the other alternatives we described the impact of the regulations as a percentage of loss of or gain in activity. These numbers may be way too high or low but were developed to help in the analysis of the proposed regulations and the alternatives. The assumptions for analysis in Appendix E did assume that public lands would remain open to mineral activities.
Response: We developed the mine models to describe the basic operations to be affected by these alternatives. We tried to establish basic areas where operators would feel a change in regulations. But in response to public comments, we expanded the mine model types to include an underground mine model.
Response: The numbers in the table are estimated operations that could occur on public lands under each alternative. The numbers are estimates based on the change of mineral activity for each alternative presented in Appendix E. Chapter 3 outlines the potential amount of reclamation and the acres not reclaimed. BLM assumes that reclamation will take place and that a series of disturbed lands will be reclaimed but waiting for BLM's final release.
Response: Table 2-3 shows by alternative the estimated number of operations expected in response to the change of mineral activities. For a discussion of the notice of noncompliance issues, please see Chapter 3, Mineral Resources.
Response: Table 2-3 is a summary of the impacts based on the alternatives presented in Chapter 3. The numbers in the table are estimated operations that could occur on public lands expected under each alternative. The numbers are estimates based on the change of mineral activity for each alternative presented in Appendix E. The rationale and the explanation of the table can be found in greater detail in Chapter 3 and Appendix E.
Response: As stated in the draft EIS and your comment, the number of unresolved notices of noncompliance is small compared to the total number of mining operations. BLM's main concern is that some, though not many, of these Notice- and Plan-level operations can and have caused significant environmental damage. The second problem as stated in Chapter 3 is that it can and has taken BLM a long time to resolve these problems. During this time environmental damage may result that may be difficult to remediate or reclaim. BLM's main concern with notices of noncompliance is the length of time needed to resolve them. We expect to continue to find problems and concerns that need resolution in the field. Under the Proposed Action these problems and concerns would be resolved in a more timely manner.
Response: Industrial minerals were recognized and analysis was completed in the draft EIS for industrial minerals. The main analysis for the change in mineral activity for industrial minerals is presented under strip mines in Appendix E. The strip mine model is an industrial mineral model, and the impacts to this type operation were discussed in the draft EIS.
Response: In the analysis of mineral impacts, Chapter 3 states that delays do cost the mineral industry money and any delays in permitting based on all of the coordination requirements also involve a loss of income. The section you quote is in the assumptions for analysis and was prepared only for developing the change of mineral activity.
Response: The numbers represent an estimate of the number of Notices and Plans of Operations that could be received during the year and in a 20 year period under Alternative 3. The estimate was derived from the change in mineral activity, Appendix E, based on the average number of Notices and Plans received during the last 17 years. These numbers have been changed for the final EIS. For the final EIS we have taken the average for the last 3 years for the numbers of Notices and Plans, and in response to public comments and changes in the alternatives, we developed new mineral activity numbers.
Response: The final EIS has been changed to show that the affects to small miners and exploration. The change in mineral activity, Appendix E, has increased for small mining and exploration projects that go from a Notice to a Plan of Operations.
Response: Your comment has been incorporated into the final EIS under baseline information.
Response: Your comment is correct. The issue is that the tailings, leach piles, and waste rock could contaminate the soils under and around these facilities. Under the current regulations these potentially contaminated soils may not be cleaned up with potential risk reviewed. Under the proposed regulations BLM would have the responsibility to ensure cleanup if the risk-based analysis finds the material to be an environmental concern.
Response: Risk management for operations should be handled during the NEPA process to allow the decision maker to determine if any mitigation is needed for the mineral operation.
Response: The existing regulations are silent on BLM's ability to require characterization of tailings and other mine waste to ensure they are handled properly. Under the proposed final regulations BLM would have the clear ability to request classification of the waste and risk assessment of the material to determine the proper disposal method.
Response: This issue is outside the scope of this rule making and is not examined in this final EIS.
Response: The final EIS has been revised to state "Although locatable mineral development would not significantly affect climate, it is appropriate to examine the impact of climate on postmining vegetation reclamation (McKee and others 1981)." Atmospheric scientists have reported that the average global surface air temperature rose 1 Fahrenheit during the 20th century (nearly half of this increase during and after 1970). At the same time carbon dioxide (CO2) concentrations have increased by 30% above preindustrial levels. Assuming CO2 concentrations continue to increase at their present rate (representing a doubling of concentration by the next century), current global circulation models predict a 4.5 to 11 Fahrenheit increase in average U.S. surface air temperatures. The major current and expected future sources of global CO2 emissions are the burning of fossil fuels (including leasable minerals such as coal, oil, and natural gas) for energy systems and transportation and the burning of forests to clear lands. Concentrations of other gasses are also increasing in the atmosphere and could contribute to climate change, although less significantly than CO2. These gasses include the following: -Methane (mostly from agriculture and energy systems). -Oxides of nitrogen (transportation, industrial and energy system sources). -Halocarbons (refrigeration and industrial sources). -Ground-based ozone (transportation and industrial sources). In addition, future improvements in the global circulation models should account for potential cooling due to reflection of incoming solar radiation by increased cloud cover and fine particulate matter. As stated in the draft EIS on page 104, "No specific provisions in the regulations would directly affect the amount and type of impacts to air quality under the four alternatives. Impacts to air quality would result from secondary effects of the regulations on the amount and type of mining activity." Finally, emissions of CO2 (and other potential "climate change" pollutants) would not be significant from expected locatable mineral operations.
Response: Figure 3-1 shows the mandatory PSD class I areas in the West established by the U.S. Congress on August 7, 1977, which also provided a mechanism by which each applicable air quality regulatory agency could establish additional federal PSD class I areas. But only five specific tribal governments have conducted such PSD class I area redesignations since 1977. Of the nearly 625 current wilderness areas, only 120 are mandatory PSD class I areas. Figure 3-1 has been revised to include all five tribal class I areas and more detailed class I area boundaries.
Response: As stated in the draft EIS on page 104, "As required by the Federal Land Policy Management Act and the Clean Air Act, BLM cannot conduct or approve any activity that does not comply with all local, state, tribal, or federal air quality laws, rules, standards, and implementation plans." BLM's approval of Plans of Operation obligates mineral operators to comply with these requirements. Failure to do so can lead to a notice of noncompliance or other actions. Please contact your local BLM office to determine if unauthorized activities are occurring in your specific situation.
Response: As stated in the draft EIS (Page 104), "As required by the Federal Land Policy Management Act and the Clean Air Act, BLM cannot conduct or approve any activity that does not comply with all local, state, tribal, or federal air quality laws, rules, standards, and implementation plans." BLM's approval of Plans of Operation obligates mineral operators to comply with these requirements. Failure to do so can lead to a notice of noncompliance or other actions. Please contact your local BLM office to determine if unauthorized activities are occurring in your specific situation.
Response: As stated in the draft EIS on page 104, "As required by the Federal Land Policy Management Act and the Clean Air Act, BLM cannot conduct or approve any activity that does not comply with all local, state, tribal, or federal air quality laws, rules, standards, and implementation plans" and "Although the precise air quality impact from mining cannot be measured now, these procedures would assure that BLM-authorized practices conform to all air quality requirements." BLM uses scientifically and legally determined air pollutant concentration values as the levels of potential significant impact. As these air quality limitations are made more stringent (as has occurred several times since the original Clean Air Act was passed in 1955), air quality will improve. Finally, all five alternatives would result in a proportional increase or decrease in air quality, depending on the expected increase or decrease of overall mineral development. A more quantified assessment is not possible until mining development plans are submitted for BLM review.
Response: A comparison of all the state water quality standards would result in a very lengthy discussion and is beyond the scope of the EIS. Even including typical state standards would be difficult because of the variety and differences between ground water and surface water standards. Although the EPA Gold Book is used for recommendations for aquatic organisms, the process of setting standards is ongoing. Several final criteria documents were released over the past 10 years, and others are scheduled for release in the next few years. Every state might not adopt all the criteria, or they may modify them. The development and evolution of pit lakes are of concern to BLM. These proposed final regulations are designed to help avoid future environmental problems when pit lakes form. All pit lakes are not highly polluted. In fact, some pit lakes have good water quality. Each mine has different geologic conditions that alter the geochemical conditions when a pit lake forms. Each site must be assessed individually for expected geochemical reactions and final pit lake quality. Long-term monitoring of the pit lake water quality can be required, and site specific mitigation measures will be used as needed.
Response: We acknowledge the omission and have added some information on the water resources of Alaska and on discharge requirements for placer mining. The zero discharge rule refers to the requirement that sediment cannot be transported further than 500 feet downstream in placer mining. For small suction dredges, recent studies suggest that this requirement has not generally been a problem. With other kinds of placer mining (as with use of mechanized equipment (so-called "cat mining") sediment transport goes beyond the 500-foot limit, causing substantial environmental impacts (Day 1999).
Response: The potential impacts of developing a mine are analyzed in site-specific environmental documents in accord with the National Environmental Policy Act. Plans of Operations will conform to all state and federal regulations such as the Migratory Bird Act, which mandates that measures be taken to protect birds. BLM agrees that the mine design and operation should focus on pollution prevention measures and treatment should be relied upon only after all reasonable sources and mitigation control methods have been employed.
Response: Surface disturbance consists of any physical, chemical, or biological disturbance of surface and subsurface resources. The provision to prevent unnecessary or undue degradation includes protecting both ground and surface water. Contamination of ground water could be considered unnecessary or undue. The site-specific NEPA analysis for an operation would disclose potential impacts to ground water and mitigating measures to prevent undue and unnecessary degradation.
Response: Dewatering is a necessary component of open pit mining. Its effects are temporary because water levels eventually return to premining levels. It, might, however, take decades or more for this to occur. The level of impacts from dewatering could be the same under all alternatives and would be determined under the environmental documentation. Under Alternative 4, backfilling of pits could improve environmental conditions by preventing the formation of pit lakes.
Response: Compliance with NEPA requires that direct, indirect, and cumulative impacts be addressed in BLM's environmental documents disclosing impacts of proposed mineral activities (federal actions) on public lands. Federal agencies have and will continue to struggle with the proper scope and analysis in preparing cumulative effects analyses. Provisions in Alternatives and 3 and 4, however, provide for greater assurance that adequate baseline information is collected and studies are conducted to address cumulative impacts. In contrast, mineral activities under Alternative 2 would no longer be considered federal actions and would no longer subject to NEPA analysis.
Response: §3809.420(b)(2) in the proposed regulations, simply states, in part, BLM's preference for avoiding impacts from occurring rather then in trying to mitigate the impacts after they occur. These regulations would not affect the allocation of water rights, which is reserved to the states.
Response: The figure should have been expressed in acre-feet/year, not gpm. We have changed the figure in the final EIS.
Response: We have added text to the final EIS to describe the impacts of dewatering.
Response: We have added text to the final EIS to describe the impacts of dewatering.
Response: In water resources, Alternative 2, State Management, the draft EIS states that mine operators will have to comply with an evolving set of state standards and regulations that may be more restrictive to mining if states adopt prescriptive standards. The regulation of pit lakes can vary from state to state depending on the focus of state mining regulations on water quality of pit lakes. Some states will adopt more detailed regulatory standards than others.
Response: BLM prefers source control to avoid pit water quality problems before they start rather than having to require expensive, long-term water treatment afterwards. Toxicity of pit water to wildlife is now regulated by a variety of federal and state laws. The Migratory Bird Act, for example, requires that pit lakes meet standards to protect birds covered by the Act. NEPA documents for site-specific Plans of Operations would require that pit water quality be assessed if pit lakes were likely to form, as well as, provide a risk assessment of potential affects and mitigation for wildlife species that may come into contact with the pit water.
Response: The long-term evaporative losses from pit lakes are considered a significant residual adverse impact. The loss of ground water due to evaporation losses from pit lakes is somewhat offset by decreased loss of ground water from evapotranspiration due to the lowered ground water levels resulting from dewatering the aquifer. Evapotranspiration losses will be decreased from premining levels until the ground water system returns to near premining water levels. Evaporative losses from a pit lake may be treated as a consumptive use and accounted as a water right. In some cases, water rights have been purchased and the water use for that certificated water right (i.e. agriculture) retired. This purchase and retirement of rights could result in a zero net increase in consumptive water use in the basin, when evaporative losses are compared to the evapotranspiration losses due to agricultural use. Another factor in computing a water budget is the estimate of recharge, which can vary, depending on the method used.
Response: Surface water refers to all surface water that flows on and near the project site and must be controlled as runoff from the project boundary or run-on, preventing water from entering the project boundary from outside sources.
Response: The Clean Water Act (CWA) did not include ground water in its definition of "navigable waters" even though the term "navigable waters" includes "waters of the United States." An early (1977) court case upheld that the Clean Water Act did not include ground water in its protections. But two later court cases have broadly interpreted the language in the act to include tributary ground water, one in 1979 and the other in 1994. This is a change in interpretation of the act brought about by court cases involving specific situations, not legislative reform. Case law is still evolving on this issue (see Cavanaugh 1998).
Response: The draft EIS discusses the process for setting ambient water quality standards for fish and other aquatic life. See the Environmental Consequences section for Water Resources.
Response: Designs for tailings impoundments and liner life will continue to depend on the site-specific geotechnical information of the site, mine life, and the resources including groundwater that need protection. Present-day designs for tailings impoundments for precious metal mines have evolved significantly from the simple designs built when the 3809 regulations were first implemented. Typically, these designs now combine double liners, sophisticated leak detection systems, and systems in place to remove solutions and hydrostatic head on the liners. These factors are evaluated more suitably at the mine plan phase rather than in this EIS.
Response: Other leachate is leachate that contains other toxic chemicals or other acids, (such as sulfuric acid), or high concentrations of contaminants that may pose a risk to human health.
Response: The Proposed Action would strengthen BLM's ability to require the collecting of environmental (hydrogeology, surface water) data early in the process to help provide a baseline and design information so that unnecessary or undue degradation does not occur.
Response: Observation wells can be required where deemed necessary by BLM. The proposed rules will not change that, but the number of wells required may be greater under the proposed regulations than would have been required before the revisions, depending on monitoring requirements at the mine. Each site will be assessed for the need for types of monitoring.
Response: The water quality benefits are based on the expected outcomes of the proposed regulatory changes. BLM determined these outcomes using information from several sources, including experience from existing mining operations in a variety of geologic settings. While developing alternatives, BLM reviewed several state programs as well as its own procedures and notices of noncompliance. The revised regulations will improve environmental controls where gaps previously existed. The duplication of regulatory programs in the states will be minimal because these revised regulations do not set up a new layer of regulatory function that would duplicate the states' existing rules. The regulations merely enhance the program already in place.
Response: A discussion of the process for setting ambient water quality standards for fish and other aquatic life has been included in the revised text. (See the Environmental Consequences section for Water Resources.) A listing of all the ambient water quality standards for fish and other aquatic life would be voluminous and not practical for including in an EIS. You can review the standards in the so-called EPA "gold book" (EPA 1986), which consists of the ambient water quality guidelines published in 1986.
Response: The indirect effects of other uses on ground water is considered to be minimal. Water for livestock is pumped at low rates, and the effects of pumping on water levels away from the well are either very small or nonexistent. Agricultural uses pump larger amounts of ground water, but some of it percolates into the aquifer as recharge. Water levels can decline due to agricultural pumping, but this water use is often seasonal and has no long-term impact to ground water resources. The consumptive use of water by agriculture will not increase as a result of these regulations. The discharge of water from mine dewatering into existing streams often provides more surface water for irrigation diversions. These discharges augment the flow of an existing stream and provide for irrigation diversions downstream.
Response: Although spills are remediated, some could have long-term consequences for long-term cleanup costs. The text has been modified to explain such situations. Such a release would normally be covered by the Resource Conservation and Recovery Act or the Clean Water Act, depending on the situation.
Response: New mineral activity could improve water quality when old tailings are reworked to extract economic ore grade values left unprocessed by previous operators because of limitations of then-current technology. The improvement would result from eliminating the source of contamination when an old tailings pile is reprocessed and measures are taken to prevent runoff, leachate production, etc. after the reprocessing. These measures include recontouring the tailings to blend into the landscape and placing a soil cap and planting vegetation.
Response: The intent of Alternative 4 is not to stop providing for water treatment after 20 years, but not to approve in the first place operations that may need water treatment beyond 20 years. The point is that an ARD problem requiring treatment in perpetuity constitutes a greater overall environmental threat than one that can be resolved in 20 years or less. The operator would remain liable for providing treatment regardless of how long it is needed, but restricting development of mines to those treatable within 20 years would avoid the impacts from the worst ARD sites.
Response: The USGS study showed that 8- and 10-inch suction dredges did not adversely affect downstream turbidity. The study did not include aquatic biota, so conclusions cannot be drawn on the health of benthic organisms in rivers subject to suction dredging. The study also looked at so-called "cat mining," which uses mechanized equipment to excavate gravels to expose the gold-bearing zone below. This type of mining was shown to increase turbidity and also is disruptive of riparian vegetation along the creek (Day1999). Other studies of Alaska rivers that have undergone placer mining have all shown decreases in riparian vegetation and increases in turbidity, water temperature, and suspended sediment (Dames & Moore and others 1986). All of these changes can harm fish and fish habitat. Water quality degradation as a singular component of placer mining with small suction dredges may not be occurring in all situations, but we need more studies on the effects of suction dredging on aquatic organisms. We think the characterization in the draft EIS of potential impacts to streams from placer mining is accurate.
Response: The final rules would improve BLM's ability to require studies and long-term monitoring as your comment suggests. The supporting data and studies, including information on financial assurances, would be open to public review during the NEPA process for the proposed mining activities.
Response: Water resource protection is a major BLM concern as well as the concern of maintaining the condition of the land and water resources for multiple use purposes. The final rules would help to give BLM greater ability in managing the impacts of mining to prevent unnecessary or undue degradation.
Response: Drawdown effects from dewatering are always greatest near the mine and decrease with increasing distance from the mine. The amount of drawdown away from the mine site can vary greatly, depending on the hydrogeologic characteristics of the aquifer bounding the mine and the boundary conditions of the flow system. These effects are temporary although the lowered water table could take decades to return to premining conditions. The effects are often restricted to a single basin, not for hundreds of miles. Typically, drawdown effects are seen a few tens of miles away from the mine. But if the potential impacts of dewatering would cause irreparable and unmitigatable harm to significant resources, BLM under the final rules could deny the proposed operation.
Response: BLM is aware of the risks of cyanide and mercury in the environment. In its water resources and hazardous material sections, the final EIS discusses the issues and the potential for contamination. These final rules would allow management of the cyanide processes by incorporating BLM's cyanide policy guidance.
Response: The cumulative impacts have been modified to include these potential regulatory burdens on the mining industry. (See mineral resource section, impacts common to all alternatives.) The mining industry will continue to experience increased regulations and restrictions from state and federal agencies. How the mining industry operates on public lands will continue to change in response to changing state and federal agency policies, which, in turn, respond to environmental degradation, political pressures, and court cases.
Response: The information came from the general working knowledge of the preparer in administering the surface management regulations in a BLM district and field office from 1981 through 1998. To support this observation of lower state staffing levels we use the following example. In Nevada, the reclamation division within the Bureau of Mining Regulation and Reclamation is responsible for reviewing and approving all reclamation plans and costs for operations involving more than 5 acres. This division is located in Carson City and staffed with about four people. BLM in Nevada has eight field offices or stations located throughout the state, each with a mineral staff ranging from two to eight people. These BLM mineral specialists typically also receive from within the same local office support from a soil scientist, geologist, hydrologist, wildlife biologist, archeologist, and range conservationist.
Response: The EIS is an analysis of the impacts of changing the 43 CFR 3809 regulations. Describing impacts for mining disturbances that occurred before the existing regulations took effect in1981 is therefore beyond the scope of the EIS.
Response: Your comment is correct. Operators are typically required to perform reclamation for operations under 3 to 5 acres, regardless of whether they are required to notify the state or not of their activities.
Response: A Cumulative and Residual Impacts section has been added to the Soils section of the final EIS.
Response: Alternative 4 represents the Maximum Protection Alternative, and the performance standard for noxious weeds was worded to represent a higher performance standard than for Alternative 3, the Proposed Action. Your comment that complete, 100% control, prevention, or elimination of noxious weeds would be near impossible was recognized in the draft EIS when we stated on page 133 that "Eliminating existing infestations might not always be feasible and would probably require the use of herbicides." Should the language in Alternative 4 for noxious weeds be adopted in the final regulations, more guidance would need to be developed to recognize that something less than complete control or elimination of these weeds at a mine site would be an acceptable.
Response: Some measure of weed control may be needed to check the spread of noxious weeds and to encourage establishing a desirable postmining plant community. Otherwise, unnecessary or undue degradation may result. Currently, it is our policy for BLM, not the operator, to inspect operations four times a year where cyanide is used or where acid rock drainage is occurring or may occur. Alternatives 3 and 4 would place this quarterly monitoring requirement into the regulations.
Response: The draft EIS described 14 broad vegetation groups and stated that disturbance from locatable minerals activities since 1981 and into future has or would occur mostly to four groups: sagebrush, desert shrub, pinyon-juniper, and southwest shrubsteppe plant communities. With respect to Alaska, most of the past and expected future mining activities on public lands in Alaska has or would consist of placer mining within existing drainages. Placer mining generally disturbs riparian vegetation with little impact to the upland or lowland tundra you mentioned for Alaska.
Response: We never meant to imply that the remaining 149,000 acres would remain unreclaimed. They simply reflect areas of active mining operations where reclamation has yet to take place. Most of this area would eventually be reclaimed except for open pits not backfilled. The text of the final EIS has been clarified.
Response: Ross (1996) shows many examples of successful revegetation where total perennial plant cover on reclaimed areas was equal to or better then nearby reference areas. The vegetation performance standards for Alternatives 3 and 4 also stress comparable diversity and use of native species, and characterize post-mining plant communities closer to what existed there before the current disturbance than implied by the existing regulations.
Response: Threatened and endangered species are addressed in the vegetation section for plant species. Similar discussions for animals and fish are included in the Wildlife and Aquatic Resources sections of the EIS.
Response: The assumption of a decrease in mineral activity was based on the EIS team's taking a look at Alternative 3 and its potential affects on the mining industry and projecting a 5 % decline in activities. For the purposes of the EIS we assumed this decline would translate into a 5% decrease in surface disturbance to 11,800 acres per year under Alternative 3 as compared to 12,500 acres per year under the existing regulations. We have since modified our projections for changes in mineral activity and surface disturbance based on comments received and incorporated these into the final EIS.
Response: A cumulative effects section for vegetation has been added to the final EIS.
Response: Under Alternative 2 the individual states would administer the surface management program for mining of locatable minerals on public lands. BLM would coordinate with the states for compliance with the executive order and other federal laws, regulations, and policies on the public lands. But because BLM would no longer be approving or managing these locatable mineral activities, our leverage to require and enforce compliance with the executive order would be reduced.
Response: The revegetation performance standard for Alternative 4 is summarized in Table 2-2 and analyzed in the Vegetation section. This performance standard says that disturbed lands must be revegetated to a stable long-lasting cover that is self-sustaining and comparable in both diversity and density to the preexisting natural vegetation. In addition, the canopy cover must be at least 90% of adjacent undisturbed lands. In comparing the reclaimed area to the preexisting vegetation, species composition is an important measure of diversity, especially when comparing the different life forms. But the specifics of how species composition should be used in determining successful revegetation and diversity should be left to the NEPA process addressing individual Plans of Operations and the desired post mining land use.
Response: BLM should review and coordinate proposals for how and when baseline surveys are to be conducted for specific projects and the qualifications of the consultants before these surveys are conducted. The timing of these surveys may be important where the potential exists for the presence of threatened or endangered annual plants or seasonally migrant animal species. Ultimately, the type survey and baseline information sought depends on the issues and concerns raised during the NEPA process for the project. For the purposes of determining successful revegetation, perennial species are normally given greater consideration because annual species often do exhibit such wide fluctuations from year to year in presence and number. Reference areas also could be used to determine successful revegetation. They would be located outside the project's impact in areas of similar vegetation at the mine site.
Response: We have made corrections to the draft EIS in response to your comment. Advances in mapping technology used in Alaska have given more accuracy in classifying and measuring riparian areas and wetlands. The most current estimates of riparian-wetland habitat are shown in Table 3-23 of the final EIS. We do not have estimates for the riparian-wetland acreage in NPR-A, but this area probably contains a large percentage of the total on BLM public land.
Response: Riparian-wetland areas meeting the BLM criteria need only exhibit vegetation or physical characteristics reflective of permanent surface or subsurface water. Under BLM's definition, a great deal more land may be considered riparian-wetlands than that considered jurisdictional wetlands by the Corps of Engineers criteria. In addition, all activities affecting riparian-wetlands, not just dredge and fill activities, would be managed under the proposed final regulations.
Response: If the proposed activity involved dredge and fill activities and the area within the incised channel but above the ordinary high water level met the three criteria to be classified as a jurisdictional wetland, the activity would be regulated by both the primary land manager (BLM) and Corps of Engineer 404 regulations. If the land above the ordinary high water mark does not meet the criteria of a jurisdictional wetland and the proposed action does not involve the discharge of dredge and fill activities, the floodplain could still be protected under BLM's proposed 3809 regulations if the potential to restore the riparian area in the abandoned floodplain is deemed feasible.
Response: The main difference, as explained in the draft EIS, is that to be classified as a jurisdictional wetland an area must have a positive wetland indicator for all three of the following: vegetation, soils, and hydrology. For an area to be a riparian-wetland under BLM's definition, an area must only exhibit vegetation or physical characteristics reflective of permanent surface or subsurface water. A great deal of overlap is likely between areas falling under the Corps of Engineers (COE) jurisdiction and areas meeting the BLM definition of riparian-wetland. The BLM definition will probably allow more area to be protected in the transition zone between the permanently saturated wetlands and uplands. In addition, in areas coming under both COE and BLM jurisdiction the protection provided by the proposed 3809 regulations would apply to activities beyond discharge of dredge and fill material.
Response: COE has jurisdiction over waters of the United States. These waters would include intermittent streams if they are determined to affect interstate commerce. But before an area is considered a wetland that comes under its jurisdiction, COE requires that wetlands have a positive indicator present for each of the following parameters: vegetation, soils, and hydrology.
Response: Assertions in the draft EIS on the impacts of placer mining on riparian-wetlands do not always apply, but in most of the cases the assertions are accurate. The Valdez Creek Mine is a good example. This operation received a reclamation award for its unusual level of reclamation planning and implementation. Even so, the operation altered riparian-wetland communities, and many years will be needed for these communities to reach a level of proper functioning condition. Riparian-wetland areas along Jack Wade Creek remain in a nonfunctional condition throughout much of the disturbed area.
Response: The final EIS has been modified to reflect your comment.
Response: The impact of mine dewatering within the Humboldt River Basin is uncertain. But in 1996 mines within this basin pumped more than 32 trillion gallons of water (Shaw and others 1997). This use of water has generated a great deal of concern in the area and has resulted in the funding of a 3-year study by the National Science Foundation and the U.S. Environmental Protection Agency to investigate the potential impacts of dewatering open pit gold mines in the Humboldt River Basin of Nevada. We believe that the draft EIS accurately portrays the potential impacts of mine dewatering, but we have modified page 138 of the draft EIS to describe in more detail potential effects of mine dewatering in Nevada.
Response: The Cumulative Effects section of the draft EIS (page 79) acknowledges that the future condition of public lands cannot be predicted by changes in mineral activity and by the 3809 regulations alone and that collectively many other factors (including other land use activities) can have a significant impact over time. The influence of these factors (competing land use activities, environmental conditions, etc.) would be constant over the range of alternatives, and the draft EIS therefore addressed these factors in general terms. The effect of land use activities like livestock grazing and recreation in reclaimed areas after mining would likely be to prolong the time needed for riparian-wetland areas to achieve proper functioning condition.
Response: As mentioned in the draft EIS, definitions used by agencies to determine regulatory jurisdiction over riparian-wetland areas are as variable as the classifications themselves. For the purposes of the proposed final regulations, if an area exhibits vegetation or physical characteristics reflective of permanent surface or subsurface water, the area will fall under the same set of regulations regardless of whether it is classified as wetlands or riparian.
Response: We believe our description of the impacts of placer mining in the EIS is a fair depiction. As you described above, there have been many successes in reclaiming placer mining. The final rules would ensure that placer mines are successfully reclaimed.
Response: We agree with your comment that many endemic, rare, and declining populations of invertebrates may be affected by mining that alters water resources. In fact, many of the habitat components that can be altered by mining and that are important to fish are also important to aquatic invertebrates (e.g. water quality, streamflow and water velocity, substrate, energy flow processes, and riparian vegetation). We have modified the draft EIS to reflect your concern.
Response: The PACFISH strategy, a joint document signed by the Chief of the Forest Service and the BLM Director in February 1995, outlined and established a strategy for anadromous fish habitat management on about 15 million acres of Forest Service and BLM lands in the Columbia River Basin and 1 million acres in California. PACFISH did the following: -Established interim goals and objectives for managing aquatic habitat and riparian areas. -Recognized areas that most influence the quality of water and fish habitat. -Provided special protective standards to guide management that might damage those areas. -Outlined monitoring requirements to track how well agencies followed the standards. -Evaluated the effectiveness of these measures. At first PACFISH was established on a short-term interim basis (effective 18 months after the signing of the decision notice) to be followed by the preparing of geographically specific EISs to analyze longer term management strategies, such as those developed for the Upper and East Side Columbia River Basin EISs. The impact of the PACFISH strategy on mining would vary according to alternatives developed in each of the geographically specific EIS. Depending on the standards adopted to protect aquatic and riparian resources, effects could range from no change from current management on up to the withdrawal of certain lands from entry and operation under the 1872 Mining Law. Management standards similar to those proposed in PACFISH could have been applied to geographically specific areas with or without the advent of PACFISH through land use planning procedures already in place.
Response: You are correct in your statement that the Alaska Statehood Act transferred ownership of all navigable waters to the State. The exceptions, however, are lands within NPR-A and in Conservation System Units and areas subject to federal navigational servitude. Since 1987, BLM has used the Gulkana River standard (which allowed for considering as potentially navigable streams suitable for small craft like freight canoes, inflatable rafts, airboats, and boats with jet units) as one of many criteria in making administrative navigability determinations. These determinations are factual, not legal determinations, that are made without regard to land status. Often, the criteria used to make navigability determinations are not totally agreed upon among the Federal Government, State of Alaska, and native corporations, or individuals. These cases end up being litigated. Only federal courts can decide questions of title ownership of submerged lands. Even if the criteria for determining navigability were totally agreed upon, most of the streams, lakes, and rivers have not had a determination made. To date, navigability decisions have been issued for most of the federal land conveyances under the Alaska Native Claim Settlement Act and the Alaska Statehood Act, but for hundreds of other waters navigability remains an issue. This said, Table 3-20 is the most up-to-date information on fish-bearing waters under BLM management. Where the state has management authority for the bed of submerged lands, this authority extends only up to the ordinary high water mark. Often the area from bank to bank does not include riparian areas, which are important in determining the condition and quality of aquatic habitat.
You are also correct in your assumption that a large portion of the 2.6 million acres of lake and reservoir surface acres from Table 3-20 is within NPR-A. The exact acreage is not available, but one can reasonably estimate that 90% of the 2.6 million acres mentioned in Table 3-20 for Alaska are within NPR-A. In 1923, NPR-A was withdrawn from the mineral laws except for lands selected by Alaska Native village corporations under Section 12 of the Alaska Native Claims Settlement Act. The withdrawal of NPR-A (and its associated streams and lakes) from the mining laws has been noted in the text of the final EIS. Even though aquatic habitat within NPR-A is withdrawn from the mineral laws, it has the potential to be affected by other development. Cumulatively, physical and chemical degradation of waters under the management of BLM, other land managers, and private owners have contributed to the decline in fish populations and loss of habitat nationwide.
Response: The amount of aquatic habitat within a state has little to do with the value of the habitat or the justification for protecting or rehabilitating the habitat. The current regulations allow for flexibility in the amount of effort put into rehabilitating fish habitat in response to the fishery value of the habitat. Unfortunately, under the current regulations, rehabilitation of fish habitat has been poor, largely because of the great amount of time required to reestablish watershed processes that control the flow of water, sediment, nutrients, and organic matter to a stream and ultimately define the quality of the habitat. The proposed 3809 regulations would allow BLM to deny mining that could cause substantial irreparable harm in areas having significant aquatic resources. This new standard would give a much greater level of protection to rare or highly valuable aquatic resources.
Response: Many glacial streams in Alaska carry high sediment loads during summer when glaciers are melting and runoff is high, and many glacial streams become clear during winter. Fish are known to use glacial streams as migration routes to and from spawning and rearing areas in clear-water tributaries. But glacially controlled streams also provide spawning, rearing, and winter habitat to certain species during winter. Most of the streams managed by BLM are clear-water, nonglacial systems. The Alaska Department of Fish and Game has authority to stipulate and approve projects on waters specified as being important for the migration, spawning, or rearing of anadromous fish in accord with AS 16.05.870. About half of Alaska's waters have been surveyed for their use by anadromous fish, which leaves many waters unprotected under this state statute.
Response: The Red Dog Mine is an open pit zinc mine in northwest Alaska owned by the NANA Regional Corporation and regulated by the State of Alaska. In 1991, the mine relocated Red Dog Creek in an elevated bypass channel that allowed the creek to circumvent the Red Dog ore deposit. In addition, runoff and ground water from the mining operation are now directed to a collection pond where water is treated and released back into the environment. As a result, the water quality of Red Dog Creek is better now than it has ever been, and fish are taking advantage of the new habitat. This effort to improve water quality, increase fish habitat, and prevent water pollution shows what can be done with current technology. Unfortunately, the improvements will last only as long as the mine operates. Upon mine closure, water treatment and control practices will be stopped, and reclamation will leave the streams to their natural fate.
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