Written by Jon DeVore, Elisabeth Ross and Nicole Bayne

On July 23, 2020, the Bureau of Land Management (“BLM”) and the National Park Service (“NPS”), within the Department of Interior, and the U.S. Army Corps of Engineers (“USACE”) published several decisions relating to the Alaska Industrial Development and Export Authority’s (“AIDEA’s”) proposal to build a 211-mile industrial access road to the remote Ambler Mining District.[1]  The road will connect the closest existing road, the Dalton Highway in the southern foothills of the Brooks Range of north central Alaska to the Mining District.  The documents released include, the Record of Decisions (“ROD”), the Environmental and Economic Analysis (“EEA”), and the Clean Water Act Section 404 permit.  The decisions were determined to be the least environmental impactful route, the shortest route, and has a remarkably small footprint potentially opening up one of the most mineralized areas in Alaska and the World.  The road and the potential developments will bring jobs to the region, revenue to the local and state governments, and potentially further benefit remote communities with access to broadband and commercial use.

In March 2020, BLM released the Final Environmental Impact Statement and selected AIDEA’s planned route as the preferred alternative, and found that the road could go forward without significant environmental impacts.  The FEIS laid the groundwork for today’s decisions.  The route selected in the EEA and ROD follow the route selected in the FEIS and include mitigation measures to protect wetlands, fish, wildlife and their habitat as well as subsistence hunting and fishing activities.

The Ambler Mining District has long been known for its prime mineral development potential, which has been explored and evaluated for more than a century.  Mineral resources found in the area include copper, lead, zinc, gold, silver, cobalt molybdenum and possible rare earth minerals.  Congress authorized in 1980 a right of way through the Gates of the Arctic National Park and Preserve (“GAAR”) in the Alaska National Interest Lands Conservation Act (“ANILCA”) to ensure ground transportation access to the Ambler Mining District.

Throughout the its years-long decision-making process, the federal agencies have consulted extensively with Alaskans and people in the Lower 48, including community meetings, tribal consultations, public input, and federal and state cooperation over the past three years.  BLM also worked closely with its consulting agencies, including NPS and USACE.

The ROD

The ROD fulfills the requirements under the National Environmental Policy Act and serves as BLM’s final decision.  The agency has approved development of Project Alternative A, identified in the FEIS, after many alternative routes from the West and the South.  This route was the original route proposed by AIDEA, accessing the District from the east after years of considering various alternatives.  It begins at Milepost (MP) 161 of the Dalton Highway and runs almost directly west for 211 miles to the District across primarily State-managed, BLM-managed, and GAAR lands.  Right of Ways on lands owned by Alaska Native Corporations will need to be obtained but the route carefully took into consideration concerns of local villages seeking to avoid impacting them.  This route crosses GAAR farther north than the other alternatives examined by the agencies and was the least environmentally impactful route after careful consideration.

The Section 404 Permit

Section 404 of the Clean Water Act establishes a program to regulate the discharge materials into waters of the United States, including wetlands.  Infrastructure development, such as Ambler Road, need permits under the program before any material may be discharged into waters of the US.  Individual permits are reviewed by USACE, which evaluates applications under a public interest review, as well as the environmental criteria set forth in the Clean Water Act and regulations promulgated by EPA.

During its permit review process, USACE adopted the BLM’s FEIS.  After analyzing the FEIS and other supporting materials, the agency determined that the route selected, Alternative A, was the Least Environmentally Damaging Project Alternative (“LEDPA”). USACE has granted a permit which authorizes the discharge of material and allows AIDEA to work within the navigable waters of the United States.

The EEA

ANILCA mandates that an EEA be prepared for the right of way across NPS lands to determine a preferred road alignment and develop appropriate terms and conditions for the permit.

Two alternative routes across NPS lands were identified in the project application materials. The EEA examined each of these routes to determine which route would generate fewer adverse environmental, social, and economic impacts upon wildlife, fish, and their habitat, and rural and traditional lifestyles including subsistence activities.  The  EEA’s determination was that Alternative A was the preferred and least environmentally impact route. The EEA also recommends measures that should be instituted to avoid or minimize negative impacts and enhance positive impacts.

The Project

The project proposed by AIDEA includes a 211-mile, all-season, industrial access road to the Ambler Mining District in the southern foothills of Alaska’s Brooks Range. The private toll road will provide access for mineral exploration, mine development, and mining operations by connecting the District with the Alaska Pipeline Haul Road (Dalton Highway), an area currently without any road or surface access. Local communities may have commercial access to the road when it is built. Under AIDEA’s proposal, approximately 25 miles of the proposed road will cross BLM-managed lands.

It is estimated that the project will employ an annual average of 766 jobs during construction and an annual average of 141 from operations and road management once the project is complete.  It is also estimated that thousands of jobs will be created from mine construction and operations if they are permitted and developed.  AIDEA’s proposed project is only the industrial road.

This timely and significant decision fulfills the promise made by ANICLA 40 years ago guaranteeing access to the mineral district while mitigating the impacts to federal and state lands.  The Ambler Road Project is perhaps one of the largest infrastructure projects to potentially be built and funded from tolls and not public road funds in Alaska.  Birch Horton Bittner and Cherot (“BHBC”) was involved in the original ANILCA legislation and has been involved in the current permit process.  BHBC encourages broad public involvement in these types of Alaskan development projects which is why we share this with you.

For more information and to read the ROD visit: https://www.blm.gov/programs/planning-and-nepa/plans-in-development/alaska/AmblerRoadEIS

[1] See generally, US Department of Interior, Bureau of Land Management, Joint Record of Decision, DOI-BLM-AK-F030-2016-0008-EIS (Jul. 2020).