Chapter 9.25
BOROUGH STANDARDS
Sections:
9.25.030 Village district standards (V).
9.25.040 Subsistence conservation (SC) district standards.
9.25.045 Subsistence conservation (SC) standards for subdistricts.
9.25.050 Habitat conservation (HC) standards.
9.25.060 General conservation (GC) district standards.
9.25.070 Resource development (RD) district standards.
9.25.080 Transportation corridor (TC) district standards.
9.25.090 Cooperative planning.
9.25.010 Introduction.
The standards contained in or authorized under this chapter are applicable to the approval of all uses within the borough. Areawide standards are applied to all lands and waters within the borough boundary. Additional standards apply only to specific zoning districts. The standards in this chapter may be relaxed only under the variances described in NABC 9.08.076, and then only on lands outside the subsistence conservation district.
The enforceable policies of the Northwest Arctic Borough coastal management plan are incorporated into this title by reference. Those enforceable policies, along with the statewide standards at 11 AAC 112, are the approval criteria for activities that undergo an Alaska Coastal Management Program consistency review, but they are not intended to limit the requirements of stricter standards which may be applicable under this title. (Ord. 10-14, 2011)
9.25.020 Areawide standards.
The areawide standards identify the general and specific courses of action to achieve region-wide comprehensive plan goals and to implement this title. The standards in this section are approval criteria for uses anywhere in the borough. All uses must comply with each of the standards set out in this section, unless the administrator or the commission finds that the standard is not applicable or the use meets the criteria of NABC 9.08.076.
A. State and Federal Standards. Applicants and operators shall comply with state and federal land management and environmental protection regulations and statutes, including, but not limited to, those listed below. These regulations and statutes may be enforced by the state or federal agency or the borough as a condition to granting any permit. This standard does not require the borough to enforce state or federal standards, and failure to do so shall not impose any liability on the borough.
1. Air and Water Quality. The statutes and regulations of the Alaska Department of Environmental Conservation and the Environmental Protection Agency with respect to the protection of air, land and water quality will be applied to proposed development. These statutes and regulations regulate waterborne or airborne emissions, solid waste storage and disposal, sewage disposal, oil spill contingency plans, and other proposed or potential discharges.
2. Dredge and Fill. Shoreline modifications and the discharge of dredged or fill material shall comply with existing state and federal standards.
B. Subsistence.
1. Priority. Protection of subsistence uses and resources shall be given the highest priority. Development shall avoid adverse effects to subsistence uses and resources whenever feasible. When adverse effects to a subsistence resource or use are likely and it is not feasible to avoid such effects, applicants shall implement measures to minimize effects. When it is not feasible to minimize adverse effects, the effects shall be mitigated. Feasibility shall be determined by the administrator with consideration of the degree of effect to subsistence resources or uses, the cost of avoiding or minimizing effect and available technology. The effects addressed in this standard may result from a single project or from a series of projects. This standard is not a basis for permitting uses which have a significant adverse effect on subsistence in the subsistence conservation district. Such uses will require rezoning.
2. Effects on Migration. Off-shore and on-shore uses shall not result in significant adverse effects to subsistence use or migration of beluga whales, bowhead whales, bearded seals, caribou, or other migratory species.
3. Effects on Whaling. Uses shall not result in significant adverse effects to subsistence activities associated with beluga or bowhead whaling, shall not cause the alteration of migration of whales, and shall not jeopardize the continued use of such waters by beluga or bowhead whales. The waters intensively used by beluga whales include Escholtz Bay, Kotzebue Sound and the area around Sisualik Spit. The waters intensively used by bowhead whales are off shore in the vicinity of the village of Kivalina, north and west to the borough boundaries.
4. Subsistence Access. Uses shall not preclude reasonable subsistence user access to a subsistence resource. “Reasonable access” is access using means generally available to subsistence users. “Precluding access” includes not only access to areas where subsistence resources are present and can be used by subsistence users, but also the means of access.
5. Subsistence Observers. Applicants for major development projects that have the potential to result in significant adverse effects on subsistence uses or resources may be required to develop a subsistence observer program. This program shall be implemented during times of high subsistence use to determine how project activities are affecting subsistence uses or resources.
6. Commercial Uses. Commercial uses and activities not related to subsistence fishing, hunting or trapping shall avoid, minimize or mitigate adverse effects on these subsistence resources and uses. Nontrapping commercial uses of trapping cabins are discouraged.
7. Development Timing. Resource exploration and development activities shall be timed and/or located to avoid interference with subsistence activities. Where significant adverse effects cannot be avoided, mitigation shall be considered in accordance with subsection (L)(5) of this section.
8. Local or traditional knowledge may be used to grant, deny or place conditions on permits when there is evidence that subsistence uses or resources may be adversely affected by the proposed use.
C. Cultural, Archaeological and Historic Resources.
1. Applicants shall contact the administrator to determine if historic or archaeological resources are located in the project area or if an archaeological survey will be required. The administrator may require the applicant to contact the State Historic Preservation Officer, local tribal or Native organizations, an appropriate federal agency, or communities near the project site to determine if resources are known to exist in the project area. When determining whether to require an archaeological survey, the administrator shall consider whether project activities have the potential to damage undiscovered resources and the likelihood that undiscovered resources may be encountered in the area with consideration of whether surveys have been completed in the area, the occurrence of known sites in the area and traditional knowledge about historical occupation of the area.
2. Except as authorized by the State Historic Preservation Officer under an approved mitigation plan, persons shall not disturb cultural, archaeological or historic sites listed or eligible to be included on the National Register of Historic Places or sites identified by the administrator or the commission as important to the study, understanding or illustration of national, state or local history, prehistory or culture.
3. Persons shall not cause surface disturbance of newly discovered historic, prehistoric, archaeological or cultural sites prior to archaeological investigation. Uses permitted under this title shall cease upon the discovery of archaeological, prehistoric, historic or cultural resources during the course of such uses, and the applicant shall immediately contact the administrator to determine the conditions, if any, under which such uses may continue.
4. Traditional Activities. Uses shall not significantly interfere with traditional activities at cultural or historic sites identified in the coastal management plan, the Alaska Heritage Resource Survey, or by the administrator.
5. Applicants for an archaeological project shall provide adequate information to the administrator concerning the purpose of the project, the proposed site, and the timing of the operation. In addition to the borough, affected communities, landowners and other appropriate parties shall be notified before any excavation or archaeological-related work commences on lands around their respective villages.
6. The Pah River cultural resource protection area includes all of Township 16 North, Range 13 East, Kateel River Meridian, that is within the subsistence conservation district, including the confluence of the Pah and Kobuk Rivers and extending south to include all of the subsistence conservation district through which the Pah River and its tributaries flow to and including the Pah River Flats. Uses and activities not related to subsistence or cultural resource management are prohibited within the Pah River cultural resource protection area.
D. Disturbance and Buffers.
1. Noise and Disturbance.
a. Vehicles, vessels and aircraft shall avoid areas where there is a concentration of a species that is sensitive to noise, movement or other project activities. Concentrations may be seasonal or year-round and may be due to behavior (e.g., migration of flocks or herds) or limited or specialized habitat (e.g., polar bear dens and seal haul-outs). The administrator or commission may require horizontal and vertical buffers as appropriate.
b. During migration of caribou, permit holders or project contractors shall not locate any operation and/or equipment so as to block or cause diversion of the migration of caribou. Permit holders and project contractors shall cease any activity that may interfere with the seasonal fall caribou migration and/or caribou summer movements, including ground and airborne transports and ground and airborne surveys or movement of equipment, until such time as the migration or summer movements have cleared three-fourths of a mile from the location of the project activity. Concern for human safety will be given special consideration when applying this policy. As a general guideline, “caribou migration” means an area where 500 or more caribou are traveling or congregating. However, during the seasonal fall period of mid-August through mid-November, permit holders and project contractors shall take extra precautions to avoid deflecting even small numbers (e.g., group sizes of five to 10) of the first caribou moving through the area, as these groups/bands set trails as “lead caribou” that subsequent caribou later follow during the migration. The intent of these guidelines is to ensure free passage of caribou to avoid impacting caribou and the communities that historically and currently depend upon it as well as preserving existing and important adjacent land uses. These guidelines may be revised based upon updated information and research (including local traditional knowledge) which is approved by the borough planning commission.
c. Concern for human safety will be given special consideration when applying this standard.
2. Hydrology. To the extent feasible and prudent, uses shall not alter natural hydrological conditions in such a way as to have a significant adverse effect on migratory or nesting shorebird, seabird, or waterfowl habitat.
3. Structures in or Near Waterbodies. To the extent feasible and prudent, structures in or over streams, lakes, rivers, wetlands, or saltwater including tideflats with the following effects are considered impacts:
a. Structures that decrease fish and wildlife habitat productivity, including effects to fish and wildlife migration, spawning, and rearing; and
b. Structures that reduce opportunities for fish harvesting activities.
4. Dredging and Filling. To the extent feasible and prudent, dredging or filling activities in streams, rivers, lakes, wetlands, or saltwater areas including tideflats: shall not significantly affect fish and wildlife habitat; shall not significantly interfere with critical life history phases of fish and wildlife; and shall limit disturbance to habitat to as small an area as practicable.
5. Dredge Disposals. Other than sand and gravel resources, uncontained dredged materials disposed of on shore in riparian areas are not allowed unless there is an approved mitigation plan.
6. Fish Habitat Buffers. To the extent feasible and prudent, project facilities or ground-disturbing activities within 100 feet landward of the ordinary high water mark from fish habitat are not allowed. This requirement does not apply to projects that require an over-water or water edge location, nor does it preclude necessary stream, river, or lake crossings.
7. Operations in caribou calving areas or moose overwintering areas shall not result in significant adverse effects on caribou or moose populations.
8. Management Objectives. The following management objectives are established for specific habitats.
a. Off-shore areas shall be managed to maintain or enhance commercial fisheries and subsistence fishing and marine mammal harvesting.
b. Estuaries shall be managed to ensure adequate water flow, natural circulation patterns, nutrients, and oxygen levels and to avoid the destruction of productive habitat and the discharge of toxic wastes and silt. Estuaries shall be managed to maintain or enhance commercial and subsistence uses including fish, waterfowl and marine mammal harvests.
c. Wetlands and tideflats shall be managed so as to assure adequate water flow, nutrients, and oxygen levels, and avoid adverse changes in natural drainage patterns, the destruction of important habitat, and the discharge of toxic substances.
d. Rocky islands and sea cliffs shall be managed so as to avoid erosion, destruction of habitat, and the discharge of toxic substances.
e. Barrier islands and lagoons shall be managed so as to maintain adequate flows of sediments, detritus and water, avoid the alteration or redirection of wave energy which would lead to the filling in of lagoons or the erosion of such islands, and discourage activities which would decrease the use of such islands by coastal species, including polar bears and nesting birds.
f. High energy coasts shall be managed by ensuring an adequate mix and transport of sediments and nutrients and avoiding redirection of transport process and wave energy.
g. Rivers, lakes and streams shall be managed to protect natural vegetation, water quality, habitat and natural water channels and flows required to protect fish and wildlife habitat and subsistence uses.
h. Habitats in upland areas shall be managed to maintain natural drainage patterns, surface water quality, and natural groundwater recharge areas; to prevent runoff and erosion; and to minimize alteration of vegetation which may result in decreased biological productivity and loss of habitat.
9. Habitat Functions. To the extent feasible and prudent, uses shall maintain the overall habitat productivity with consideration of the effects to habitat functions and the living organisms associated with the habitat. The administrator or the commission may require conditions to avoid, minimize or mitigate effects to habitat or the living organisms affected by project activities.
E. Commercial Recreation. Uses associated with commercial recreation uses of land and wildlife habitat (e.g., commercial hunting and fishing camps and commercial recreational boating, hiking and viewing) shall minimize adverse effects on subsistence activities and resources.
F. Transportation and Utilities.
1. Land Use Area Designation. The borough planning commission must designate a transportation corridor district before borough permits are issued for new transportation or utility corridors or facilities incidental to major development.
2. Water Dependence. Transportation and utility routes and facilities shall be sited inland from beaches and shorelines unless the route or facility is water dependent or not feasible and prudent inland alternative exists to meet the public need for the route or facility.
3. Minimization of Effects. Transportation and utility corridors and facilities, including ice roads, shall be sited, designed, constructed, and operated to:
a. Minimize adverse effects on biological resources and alteration of shorelines, water courses, wetlands, and tidal marshes;
b. Avoid disturbance that would result in significant adverse effects to important habitats and to populations of birds, fish, whale, caribou and other species during migration periods;
c. Minimize adverse effects on subsistence use areas and local community ways of life; and
d. Avoid duplication of corridors and facilities.
4. Migratory Passage. Transportation and utility corridor uses shall be sited, designed and operated to:
a. Allow for the free passage and movement of fish and wildlife with due consideration for historic and recent migratory patterns; and
b. Avoid above-ground utility lines and pipelines, to the extent feasible and prudent, when above-ground lines or pipelines would adversely affect moose or caribou populations.
5. Anadromous Fish Streams. To the extent feasible and prudent, access roads shall avoid crossing anadromous fish streams. Bridges and culverts shall be designed and constructed to minimize habitat disturbance and to not adversely affect free passage of fish.
6. Stream Crossings. Where feasible and prudent, road and pipeline crossings of rivers or streams shall be minimized and consolidated to reduce the number of crossings in an individual drainage.
7. Facility Design, Construction and Maintenance. Highway, airport, port and utility design, construction and maintenance shall minimize alteration of water courses, wetlands and intertidal marshes, and visual degradation.
8. Airstrips shall be sited, designed, constructed and operated in a manner that minimizes their effect on wildlife. To the extent feasible, airstrips near villages shall be sited so as to allow future growth without bifurcating the village.
9. Applicants shall include measures for unimpeded wildlife crossing in the design and construction of structures such as roads and pipelines that are located in areas used by wildlife. Pipeline, railroad, road or other transportation facility designs shall be based on the best available information and include adequate pipeline elevation, ramping or burial to minimize disruptions of migratory patterns and other major movements of wildlife. Best available information will be evaluated during project review to determine if pipeline burial, ramping, elevation or a combination thereof will be employed.
G. Energy Facilities – Oil and Gas, Coal, Hydroelectric, Geothermal, and Wind.
1. Land Use Area Designation. Other than for oil and gas exploration and other temporary energy facilities and uses, energy facilities not related to community energy supply shall be designated as a resource development district by the borough planning commission prior to or during consideration of a permit application.
2. Siting Considerations. Temporary energy facilities shall be sited so as to:
a. Minimize adverse environmental, social and health effects while satisfying industrial requirements;
b. Minimize the site clearing, dredging and construction in productive habitats;
c. Allow the free passage and movement of fish and wildlife with due consideration for historic migratory patterns;
d. Minimize the probability of spills or other forms of contamination which affect subsistence use areas and resources, commercial fishing grounds, spawning grounds, and other biologically productive or vulnerable habitats, including marine mammal rookeries and hauling out grounds and waterfowl nesting areas;
e. Use areas of least biological productivity, diversity, and vulnerability and where effluents and spills can be controlled or contained.
3. Seismic or geophysical surveys occurring on land or water will be located, designed, and conducted in a manner that avoids significant disturbances to fish and wildlife populations, habitats, and subsistence and recreational harvest of fish and wildlife. Depending on site-specific concerns, the administrator may require: seasonal restrictions, restrictions on the use of explosives, or restrictions relating to the type of transportation used. Surveys shall be timed to avoid adverse effects on commercial and subsistence fishing and migrating smolts.
H. Mining and Mineral Processing.
1. Land Use Area Designation. A “mining operation” as defined in NABC 9.04.070 shall be designated as resource development districts by the borough planning commission prior to or during the consideration of a permit application.
2. Mining Plan and Best Management Practices. Applicants for mining projects may be required to identify best management practices that will be used for mining activities.
3. Coastal Gravel Extraction. Sand and gravel may be extracted from coastal waters, intertidal areas, barrier islands and spits, or freshwater areas only when there is no feasible and prudent alternative to extraction of materials from these areas which will meet the public need for the sand or gravel. Such extraction activities shall minimize sediment transport, turbidity and sedimentation; minimize shoreline erosion; minimize adverse effects to herring and anadromous fish spawning and rearing habitat, and waterfowl habitat; and minimize increases in shoreline erosion.
4. Unless there is no feasible and prudent alternative, sand and gravel shall be authorized in the following descending order of priority:
a. Reuse of gravel from abandoned development areas;
b. Existing gravel pits;
c. New upland pits;
d. Rivers, streams and lakes that do not support fish;
e. Shoreline and off-shore gravel sources;
f. Floodplain gravel sources in fish-bearing streams; and
g. Small streams within tundra areas.
5. Floodplain Gravel Extraction. If mining in rivers and streams cannot be avoided, the following policies apply:
a. To the extent feasible and prudent, gravel shall be mined from the following river types in order of preference: braided, split channel, meandering, sinuous and straight. When necessary, exposed gravel bars in large, active floodplains may be considered for mining.
b. Changes to channel hydraulics shall be avoided.
c. Gravel pits shall be located to minimize the probability of channel diversion through the site.
d. The effects of gravel removal shall be minimized by maintaining buffers between active channels and the work area and by avoiding:
i. In-stream work;
ii. Unnecessary clearing of riparian vegetation; and
iii. Disturbance to natural banks.
e. To the extent feasible and prudent, site configurations shall avoid the use of long straight lines and shall be shaped to blend with physical features and surroundings to provide diverse riparian and aquatic habitat.
f. If the site is likely to be inundated during operation, temporary dikes shall be constructed around the site to minimize disturbance to low flow channels and avoid entrapment of fish.
g. When gravel-washing operations occur on the floodplain, settling ponds are required and shall be dikes or set back to avoid breaching by the 10-year flood cycle. The wash water shall be recycled; effluent discharge shall comply with state and federal water quality regulations.
6. Reclamation Plan. The administrator or commission shall require a reclamation plan be submitted with the application packet or as a condition of approval for any ground-disturbing activity, and shall be required for mining and gravel extraction activities.
a. The administrator or commission shall not impose reclamation requirements inconsistent with or duplicative of the reclamation requirements of a state or federal agency, but they may impose more stringent requirements. If there appear to be conflicting requirements, the administrator shall work with the applicant to attempt to reach a solution acceptable to the borough, the applicant and the applicable state or federal agency. If a suitable reclamation plan is already in existence, the administrator or commission may adopt that plan if it fulfills the requirements of this section and concerns of the public.
b. Applicants shall contact the administrator prior to submission of the application packet to determine if a reclamation plan will be required with the application. At a minimum, a reclamation plan shall contain:
i. A grading and site plan drawn and certified by an Alaska licensed professional engineer or land surveyor or other acceptable plan, indicating the areas excavated or filled, the proposed finished grades and contours, drainage directions and any control structures to be installed;
ii. A survey if required by the administrator;
iii. Photographs of the predisturbed site;
iv. The methods and plans to be employed for reclamation of the site during and after the activity shall be stated along with a time table for completion;
v. A description of all roads and structures and a site map showing the locations of all roads and development which will be built indicating which will remain after cessation of activities;
vi. A description of any known reclamation requirements of any other governmental entity, and a copy of any reclamation plan under development or in existence for the activity; and
vii. A map at a scale of one inch equals 200 feet extending 200 feet beyond the site area with a maximum contour interval of five feet. The scale requirements may be adjusted by the administrator to fit unusual circumstances.
c. Reclamation of all upland and floodplain mined sites shall be required, unless such reclamation would cause greater adverse effects to the environment than leaving the area unreclaimed. Excavated areas may be converted to fish or waterfowl habitat if practicable. At a minimum, reclamation will include the following elements, as applicable:
i. Topsoil must be segregated from overburden, with both stored above the mean annual flood line.
ii. At the end of each operating season, all disturbed areas must be regraded to stable slopes. Within mean annual flood lines, regrading to ground contours which will not entrap fish and not significantly alter the stream hydraulics that will occur at the end of each operating season, tailings used in the construction of settling ponds and other essential facilities may be retained in place until completion of use.
iii. At the completion of mining activities or gravel extraction, all disturbed areas will be stabilized and revegetated. This reclamation shall include the following:
(A) All disturbed areas shall be graded to stable slopes that blend with the natural topography;
(B) Erosion-control measures shall be implemented as appropriate to stabilize the site; and
(C) Areas designated for revegetation shall be covered with topsoil to encourage establishment of native plant species.
(D) An exception to these requirements is provided for the portion of a gravel extraction site required to provide gravel for continuing maintenance and operation activities. Maintenance gravel sites will comply with the requirements of subsections (H)(6)(c)(i) and (ii) of this section.
7. Abutting Owners. Permits for major resource extraction may not be granted without the nonobjection of abutting landowners if there is a significant possibility that the proposed activity will infringe on the property rights of the abutting owner. An applicant for an Alaska Native allotment or other state or federal public lease entitlement shall be treated as an abutting owner so long as the application for such entitlement is pending as shown in the applicable public land records.
I. Timber.
1. Timber Management Practices. Best management practices may be required for all forestry and timber harvest activities in accordance with the Forest Resource and Practice Regulations (11 AAC 95) of the Forest Practices Act (AS 41.17).
2. Access. Timber-related projects shall retain recreational and subsistence access.
3. Scenic Views. Applicants shall include provisions in the project description for the protection of scenic views and vistas to the extent feasible and prudent.
J. Air and Water Quality.
1. Cumulative Effects. Applicants for major development projects shall identify the cumulative effects on air and water quality.
2. Air and Water Quality. Applicants may be required to identify and follow best management practices to minimize emissions and effluents from commercial and industrial sources.
3. Environmental Protection Technology. To the extent feasible and prudent, the most effective technology will be used for storage, handling, cleanup and disposal of hazardous substances, petroleum and petroleum products.
4. Siting. Developers of proposed commercial facilities shall site facilities to ensure adequate effluent dispersion and proper siting of sewer facilities.
5. Hazardous Substances. Hazardous substances shall be handled and stored to prevent release into the environment and, where appropriate, removal from the borough. Entities proposing hazardous waste treatment, storage, transportation and disposal may be required to consult with the borough, affected communities, Native corporations, and adjacent landowners before proposing the storage of hazardous substances.
6. Erosion and Siltation. Soil erosion shall be avoided or minimized by avoiding the removal of vegetation adjacent to waterbodies whenever feasible and by stabilizing and revegetating disturbed soil as soon as possible.
7. Impermeable lining and diking or other satisfactory secondary containment is required for fuel storage facilities as required for bulk fuel facilities.
8. All borough approvals for land or water uses which may directly affect water quality shall require that these activities be sited, designed, constructed and operated to provide a reasonable assurance that discharges shall meet state or federal water quality standards for the receiving water.
9. Applicants for industrial operations or petroleum storage and transportation facilities (on-shore and off-shore) shall prepare an oil spill control and clean-up plan. The plan must contain a risk analysis indicating where oil spills are likely to flow under various sets of local meteorological, oceanographic, hydrologic or soil conditions. Impacted areas must be identified and strategies fully developed to protect environmentally sensitive areas; the spill control and clean-up equipment which is available to the operator and the response time required to deploy this equipment under the various scenarios must be contained in the risk analysis. Depending on the nature of the activity, adequate spill response equipment may be required to be kept on site. Duplicative borough oil spill and clean-up plans will not be required where a state or federally approved plan meets the criteria in this section.
10. Applicants for projects with activities that cause dust shall take reasonable measures that reduce production of dust. Measures may include reducing the number of vehicles, reducing vehicle speed, reducing standing water on roads, use of water to suppress dust, use of dust suppressants, surfacing roads with gravel, or pavement. A dust control plan may be required by the administrator or the planning commission as appropriate.
11. Conditions may be placed on permits to require monitoring of project effects to air or water quality, including requirements for monitoring by a third party.
K. Noise and Nuisance. Uses shall not significantly affect surrounding residential properties with excessive noise, fumes or odors, glare, smoke, light, vibration, dust, litter, or interference in any radio or television receivers off the premises or cause significant line voltage fluctuation off the premises where the use occurs.
L. Land and Water Uses.
1. Water Dependent and Water Related. In planning for and permitting development in or adjacent to waterbodies, the borough shall give, in the following order, priority to:
a. Subsistence uses and activities;
b. Commercial fishing-related facilities and uses;
c. Noncommercial recreational uses and activities;
d. Water-dependent facilities;
e. Water-related facilities; and
f. Commercial or industrial uses and activities for which there is no feasible and prudent inland alternative to meet the public need for the use or activity.
2. Multiple Use. To the extent feasible and prudent, piers, cargo handling, storage, parking and other facilities shall be designed and used to prevent the need for duplicative facilities.
3. Compatible Uses. To the extent feasible and prudent, activities on and uses of lands and waters within the borough shall be compatible with adjacent land and water uses.
4. Duplicative Facilities. To the extent feasible and prudent, duplicative facilities shall not be developed on shorelines if another facility is available for that use.
5. Mitigation. Applicants shall implement measures to mitigate potentially adverse effects from project activities, on the following resources of local importance: fish and wildlife populations and their habitats; subsistence resource uses and activities; cultural resources; and commercial fishing uses and activities. Mitigation shall include and be considered in the following order of preference:
a. Avoid adverse effects to resource or other uses;
b. When the loss cannot be avoided, minimize effects to resources and uses and minimize the need for restoration, maintenance or compensation;
c. When the loss of resources and/or uses cannot be minimized, restore or rehabilitate the resource to its predisturbance condition when feasible and prudent; and
d. When loss or damage to existing resources and associated activities is substantial and irreversible (including for example a seasonal loss in commercial fishing or subsistence harvest) and the above objectives cannot be achieved, compensation for resource and/or harvest loss may be required by the administrator. In the case of a loss of habitat production potential, the administrator may consider enhancement of other habitats as an alternative means of compensation.
6. Causeways shall be avoided unless there are no reasonable alternatives. All causeways are required to be sited and designed to avoid or minimize disturbance of natural migration patterns and habitat use of fish, marine mammals and molting birds, prevent changes in water circulation patterns that would have significant adverse effects on fish and wildlife, and ensure adequate sediment transport. The applicant shall incorporate measures into the causeway design, including breaches, to maintain natural migration, water circulation and sediment transport patterns.
7. The administrator may require measures to rehabilitate sites potentially affected by industrial uses, mining or gravel extraction.
8. Off-Road Travel. Off-road travel shall meet the following requirements.
a. Disturbance of the tundra vegetative cover is prohibited including blading, removal of the cover by other means, or other damage to vegetation.
b. Snow ramps, snow and ice bridges or cribbing shall be used to cross frozen waterbodies to preclude cutting, eroding or degrading of their banks. Snow ramps and ice bridges shall be substantially free of soil and debris and of sufficient thickness to support vehicles. Snow and ice bridges must be removed or breached, and cribbing removed after final use or prior to breakup, whichever occurs first. Frozen water courses shall be crossed at shallow riffle areas, and avoid disturbance to fish overwintering areas to the extent feasible and prudent. Where such areas do not exist, the applicant shall propose an environmentally preferred location. Vehicles shall not be abandoned.
c. Project-related off-road travel shall not interfere with caribou migration or calving or moose overwintering.
d. Existing roads and trails shall be used wherever possible. Trail width shall be kept to the minimum necessary.
e. The winter operation of ground contact vehicles for off-road travel must be limited to areas with adequate ground frost and snow cover.
9. Watershed Protection. Applicants for proposed uses shall protect the functions of watershed areas during and after construction. The administrator may require conditions of approval to retain natural drainage patterns to the extent feasible and prudent and minimize or eliminate siltation, road and surface runoff, and pollution of the water supply, and to maintain the quality of aquifers.
10. Commercial operations shall have a water use plan approved by the local authority when using a community’s water system.
M. Disposal of Refuse, Human Waste and Chemicals.
1. Disposal of Refuse.
a. A natural person in a developed area of the borough shall dispose of refuse in refuse receptacles.
b. A natural person in an undeveloped area of the borough shall dispose of refuse by:
i. Burning the refuse if a fire can be safely maintained; and removing all unburned material from the ashes and taking to a refuse receptacle.
ii. Taking the refuse to a refuse receptacle.
iii. Backhauling refuse to an approved disposal site.
c. Unless refuse disposal is covered in a master plan, a person conducting commercial, industrial or construction activities in an undeveloped area shall backhaul refuse to an approved disposal site in coordination with the city or tribal entity responsible for the facility. The administrator or commission may require commercial activities with 25 or more employees to develop a waste management plan.
2. Disposal of Human Waste.
a. A natural person in a developed area shall dispose of human body waste at designated locations or in fixtures provided for that purpose.
b. A person conducting noncommercial uses in an undeveloped area shall not dispose of human body waste within 200 feet of a water source or high water mark of a body of water.
c. A person in an undeveloped area shall deposit solid human body waste in holes dug six to eight inches deep, and shall cover the hole.
d. A person conducting commercial, industrial or construction activities with 25 or more employees shall obtain a waste management plan approved by the administrator or commission.
N. Natural Hazards.
1. Design and Siting Criteria. To the extent feasible and prudent, facilities shall not be located in a natural hazard area. Where feasible and prudent alternatives do not exist, applicants shall implement measures to design, site, construct, and operate facilities in natural hazard areas to prevent or mitigate potential hazards to minimize property damage, protect against loss of life, and prevent damage to land and water resources.
2. Erosion. Applicants shall implement measures to avoid or minimize coastal and riverine erosion from project activities. Development of mining and gravel extraction shall be sited and conducted to avoid a significant increase in coastal erosion, river erosion and significant adverse effects on other coastal and riverine processes.
3. Permafrost. Uses are required to maintain the natural permafrost insulation quality of existing soils and vegetation unless disturbance is necessary to implement project objectives associated with the borough permit.
4. Coastal Storm Surge Flooding. Industrial and commercial development outside established communities and within areas subject to 100-year event storm-surge flooding shall be limited to water-dependent or water-related uses unless there are no feasible or prudent alternatives.
5. Landslides and Mass-Wasting Hazards. To the extent feasible and prudent, development shall avoid areas identified as subject to landslide and mass-wasting hazards.
6. Riverine Flooding. To the extent feasible and prudent, industrial and commercial development shall not be sited within the active floodplain or within the high water mark of record, if known.
7. Ice Hazards. To the extent feasible and prudent, project activities shall be sited to avoid ice hazards. Where it is not feasible to site project activities to avoid ice hazards, users shall implement measures to avoid damage to facilities, human health and safety, and the environment.
8. Off-shore structures shall be designed to withstand natural hazards and forces which may occur while at the site. Design criteria must be based on actual measurements or conservative estimates of geophysical forces. In addition, structures must have monitoring programs and safety systems capable of securing such structures in case unexpected geophysical hazards or forces are encountered.
O. Flood Damage Prevention.
1. Statement of Purpose. The borough recognizes that areas within its boundaries are periodically subject to flooding that may result in the loss of life and property, health and safety hazards, disruption of commerce and governmental services, and extraordinary public expenditures for flood protection and relief, all of which adversely affect the health, safety and general welfare of borough residents. This chapter adopts the necessary regulations of the Federal Emergency Management Agency (FEMA) to enable the borough as well as its communities and residents to participate in the National Flood Insurance Program (NFIP) and to promote the public health, safety and general welfare by minimizing flood damage and loss and promoting access to disaster relief.
2. Statement of Intent. To accomplish these purposes, it is the intent of this chapter to:
a. Encourage protection of land uses vulnerable to floods, including public facilities and utilities that serve such uses, against flood damage at the time of initial construction or substantial improvement.
b. Modify, restrict or prohibit land uses that are dangerous to health, safety or property in times of flood or that might cause an excessive increase in flood heights or velocity.
c. Ensure that subdivision and development of land within the borough are consistent with the need to minimize flood hazards and damage.
d. Ensure that potential buyers are notified that property is in an area of special flood hazard.
e. Make federally subsidized flood insurance available to owners of property in the borough.
f. Ensure that those persons who occupy areas of special flood hazards assume responsibility for occupying such flood hazard areas.
3. Geographic Scope and Applicability. This chapter shall apply to all designated special flood hazard areas within the jurisdiction of the Northwest Arctic Borough, excluding the city of Kotzebue. Until such time as a “Flood Insurance Study” and “Flood Insurance Rate Maps” are published by FEMA and approved by the assembly, the borough shall reasonably utilize the high water marks of record on the existing community profile maps or other available flood data to identify flood hazard areas.
4. Land Use Permit Standards within Flood Areas. Within a designated flood hazard area as identified in subsection (O)(3) of this section, no land use permit shall be approved unless the following applicable conditions are satisfied. Where flood elevation data is not available, applications for land use permits will be reviewed to assure proposed land uses will be reasonably safe from flooding. The test for reasonableness will depend on local knowledge and judgment, including use of historical data, local high water marks, photographs of past flooding, traditional knowledge and other available information.
a. General Standards. If a proposed land use is located in a flood area, all new construction and substantial improvements shall meet the following general standards, as applicable:
i. Anchoring. All new construction and substantial improvements shall be designed, modified, constructed and adequately anchored to prevent flotation, collapse or lateral movement of the structure; all manufactured homes must likewise be anchored to prevent flotation, collapse or lateral movement.
ii. Construction Materials and Methods. All new construction and substantial improvements shall be constructed with materials and utilize equipment resistant to flood damage and use methods and practices that minimize flood damage, including waterproofing, watertight construction, use of substantially impermeable materials and other construction techniques.
iii. Mechanical and Electrical Utilities. Electrical, heating, ventilation, plumbing, and other service facilities shall be designed, constructed and/or otherwise elevated or located to prevent water from entering or accumulating within the components during flooding.
iv. Water and Sewer Utilities. All new and replacement water supply and sewage systems shall be designed and constructed to minimize or eliminate infiltration of floodwaters into the system and discharge from the systems into floodwaters. Sewage lift station electrical panels shall be elevated above flood areas.
v. Public Utilities. All new or replacement public utilities such as gas, electric and telephone systems shall be designed or constructed to eliminate disruptions due to flooding and associated hazards.
vi. Residential Construction. New construction and substantial improvement of any residential structure shall have the lowest floor elevated to or above base flood elevation if established, or the high water marks of record, to avoid flood damage. Fully enclosed areas below the lowest floor in residential elevated structures that are subject to flooding are to be designed to allow for the entry and exit of floodwaters or are otherwise prohibited.
vii. Manufactured Homes and Structures. Manufactured homes shall not be placed in a flood area if possible and if placed within a flood area shall be installed using methods and practices that minimize flood damage. For the purposes of this requirement, manufactured homes must be elevated and anchored to resist flotation, collapse, or lateral movement.
viii. Nonresidential Construction. New construction and substantial improvement of any commercial, industrial or other nonresidential structure, including associated utility and sanitary facilities, shall have the lowest floor elevated to or above either the level of the flood elevation or the high water marks of record and shall be:
(A) Floodproofed so that below the base level the structure is watertight with walls substantially impermeable to the passage of water.
(B) Certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this section, and such certifications shall be provided to the planning department in conjunction with required permit documentation.
(C) Fully enclosed areas below the lowest floor in nonresidential elevated structures that are subject to flooding shall be designed to allow for the entry and exit of floodwaters or are otherwise prohibited.
b. Pursuant to subsection (O)(4)(a) of this section, the planning director or planning commission may, consistent with this title, require additional flood damage control measures such as, but not limited to, the following:
i. Installation of watertight doors, bulkheads, shutters, or similar methods of watertight closure;
ii. Reinforcement of walls to resist water pressures;
iii. Use of paints, membranes, or mortars to reduce seepage of water through walls, foundation, and structural supports;
iv. Installation of pumps or comparable facilities for subsurface drainage systems to relieve external foundation wall and basement flood pressures and water levels inside the structure;
v. Location and installation of all electrical equipment, circuits, appliances and heating systems so that they are protected from inundation by floodwaters;
vi. Location of storage facilities for chemicals, explosives, buoyant materials, flammable liquids or other toxic materials that could be hazardous to public health, safety and welfare, or design of such facilities to prevent flotation of storage containers that could result in the escape of toxic materials into floodwaters;
vii. Use of materials such as sheathing, siding, subflooring and underlining that are not subject to water damage due to prolonged submersion;
viii. Use of closed cell insulation to prevent waterlogging and consequent loss of insulation capacity;
ix. Installation of backwater valves in sewer lines in accessible locations immediately adjacent to the exterior foundation wall; and
x. Other standards and methods that may be required to site, design, construct and maintain uses to minimize the loss of life or property due to flooding.
5. Erosion Setback. The planning director or planning commission may, consistent with this title, impose a setback requirement on new development to create a safety buffer for erosion, or may require new development to be designed to be easily relocatable. The planning director may develop setback guidelines for communities when erosion data becomes available.
6. Implementation.
a. Use permits issued pursuant to this chapter shall conform to all applicable federal, state and local laws, ordinances or regulations as are from time to time established or amended; however, unless preempted, the provisions of this chapter shall control in the event of any conflict with such ordinances or regulations.
b. The planning department shall be responsible for maintaining for public use and inspection appropriate records and information relevant to implementation of this chapter. Such records and information may include but not be limited to the following.
i. The elevation to which structures are floodproofed or made flood resistant.
ii. Flood data maps, as available, and any reports or studies on flood hazards in borough communities, such as written by the U.S. Army Corps of Engineers, United States Geological Survey or private firms.
c. The planning department shall file with the Federal Insurance Administration an annual report on forms provided by the Federal Insurance Administration. This annual report shall be verified and signed by the mayor. A copy of the annual report shall be retained by the borough and one copy shall be sent to the relevant state coordinating agency.
d. In case any structure is constructed or substantially improved in violation of this chapter, the borough, in addition to other remedies, shall institute any proper actions or proceedings necessary to correct or abate such violations as also permitted under this title.
e. Nothing in this chapter shall be construed as applying to any structures existing prior to the effective date of this chapter, unless they are substantially improved after the effective date.
f. Disclaimer of Liability. The grant of a use permit or approval of a plat in the flood hazard area shall not constitute a representation, guarantee or warranty of any kind by the borough or any official or employee thereof of the practicability or safety of the proposed use, and shall create no liability upon the borough, its officials or employees.
P. Economic Development Standards.
1. Applicants for a major development project in any zone or a project that will have 10 or more positions (temporary or permanent) shall identify measures in the project description that will increase local benefits from the development. These measures may include, but are not limited to, the following beneficial effects of uses:
a. Use of suppliers or subcontractors from within the borough for work which can be accomplished competitively by local private businesses or Northwest Arctic regional or village corporations;
b. Employment of borough residents;
c. Use of flexible work schedules to allow subsistence pursuits by employees;
d. Job training programs;
e. Internships;
f. Activities that are related to or encourage Inupiat arts and crafts;
g. Use of local energy sources such as locally produced hydrocarbons and alternative energy including hydroelectric, ocean energy, wind, biomass, or solar power;
h. Generation of tax revenues greater than direct or indirect local government expenditures related to the development;
2. Annual Report. Operators of major development projects shall submit an annual report to the borough by April 1st for the previous year describing how many borough residents it employed and measures to encourage local employment.
Q. Coastal Access and Easements.
1. Easements. Recreation, industrial and other users shall use approved easements through or adjacent to private lands.
2. Coordination. Applicants shall develop access points and easement routes on state and federal lands in coordination with the borough, adjacent landowners and affected communities, Native corporations and tribal organizations.
R. Fire Safety and Emergency Access. A proposed use shall not be allowed if the administrator or the State Fire Marshal determines the use will pose a significant fire danger. A proposed use shall not be allowed if it does not allow clear and easy access for fire and emergency apparatus and police protection. Nothing in this section or title shall be interpreted to require the administrator to determine that a proposed use is or is not a fire hazard or does or does not allow emergency access. Ensuring fire safety and emergency access are responsibilities of the permittee or applicant and not the responsibility of the borough.
S. Health, Safety and Well-Being. The planning commission may require an applicant for a master plan or a major development project to fund an independent health impact assessment (HIA) as part of the permit application. The plan for the HIA will be presented to the borough for review and approval. The HIA may include:
1. Assessment of the baseline health status of impacted communities.
2. Assessment of the potential direct, indirect, and cumulative social, physical, and psychological effects of the proposed project.
3. Proposed measures to monitor relevant health indicators, and measures to protect and promote health based on predicted impacts.
The HIA may be conducted independently and results will be released to the borough. The applicant may solicit collaboration and input on the HIA from regional and statewide health authorities. The HIA shall not require the collection of new health data from human subjects.
T. Studies and Monitoring Requirements. The administrator, planning commission or assembly may require reasonable studies or monitoring programs for permits they approve to provide baseline data or to determine impacts of proposed activities.
U. Surety. Prior to the commencement of a use, including construction, operation of facilities or reclamation, or as a condition of approval of a rezoning, the administrator or commission may require surety by a company authorized to do business in Alaska and listed on the most recent U.S. Treasury Department Circular 570, List of Approved Sureties, published each year in the Federal Register.
1. The form and amount of surety shall be set based upon the magnitude, type and costs of the activities planned and the nature, extent and duration of the operations. The amount and form of surety shall be calculated to protect the borough and ensure compliance with the requirements of the permit or approval, and cover the cost of reclamation, restoration, rehabilitation, or mitigation required by the administrator or commission in the permit conditions or other approval. The total amount of the surety shall not exceed 100 percent of the estimated cost of reclamation or mitigation as determined by the administrator or the planning commission, with the sum adjusted for inflation. Upon reasonable notice to the permittee, the amount of the surety may be increased during the life of the permit, upon issuance of written findings by the administrator, providing the reasons and calculations increasing the surety in proportion to the amount that the estimated cost of reclamation or mitigation has increased and is not covered by the original surety amount.
2. The liability under the surety provisions shall continue until released by the administrator in part, or in its entirety, upon verification of the completion of the required reclamation or mitigation.
3. The administrator or commission may accept evidence of sufficiently funded and unencumbered self-insurance, proof of financial responsibility, trust fund, or the existence of sufficient surety filed with another governmental entity as a means of surety that fulfills the requirements of this section.
V. Research Projects and Scientific Studies. These standards for research projects in the Northwest Arctic Borough intend to promote mutual respect and communication between researchers, scientists, and borough residents. All researchers and scientists working in the Northwest Arctic Borough have an ethical responsibility to the region’s culture, environment and people. The following standards shall apply as appropriate for researchers and scientists in all fields, and it shall be the principal investigator’s responsibility to implement and adhere to these measures:
1. Research projects and scientific studies within the Northwest Arctic Borough shall obtain informed, written consent of project participants, including but not limited to city and tribal councils. Principal investigators shall inform the Northwest Arctic Borough and any affected city or tribal government of planned research projects that will be performed in the region. Researcher’s duty to inform continues after NABC Title 9 permit approval has been obtained.
2. At a minimum, projects shall provide written explanations of the purposes, goals, timeframe and research project’s sponsoring institutions and affiliations while identifying the person in charge and any other investigators involved in the project.
3. Principal investigators shall consult with the Northwest Arctic Borough and any tribal councils or city governments in the project area for project development, planning and implementation.
4. Research, scientific results, and final reports should be explained in nontechnical terms and shall be shared and communicated to the Northwest Arctic Borough, tribal councils and city governments as applicable.
5. Subject to the requirements for anonymity and participants’ informed consent preferences, project publications shall credit those contributing to the research project by acknowledging the “intellectual property rights” of individual borough residents participating in the research.
6. In cases where confidential information is communicated, anonymity must be guaranteed in both the original use of data and in its deposition for future use. If anonymity cannot be guaranteed, the subjects shall be informed of the possible disclosure and consequences of becoming involved in the research.
7. All research involving children (under 18 years old) must be fully justified in terms of goals and objectives, and shall never be undertaken without the written consent of their parents or legal guardians.
8. Any recordings, video, audio, photography, or other means of documenting research participants must be specifically identified and agreed to by the participants in advance. If additional uses are needed, the participant or their agent must be contacted to consent to the new use.
9. The use and deposition of human tissue samples shall be based on the written consent of the subjects or next of kin.
10. Projects shall follow all other relevant federal, state, and local regulations and/or policies pertaining to cultural, environmental and health protection.
11. When “traditional knowledge” is sought and used as part of the research project, it is recommended that the persons involved shall be compensated at a fair rate.
12. Sacred sites, cultural materials (including artifacts), and cultural property shall not be disturbed or removed without the consent of the Northwest Arctic Borough and any affected communities. The precise location of specific sites may not be published without the consent of the Northwest Arctic Borough. All work related to such areas and material shall be conducted in accordance with federal, state and local laws and regulations. (Ord. 12-03 § 1, 2013; Ord. 10-14, 2011)
9.25.030 Village district standards (V).
The following standards shall be used to guide the approval of development and uses in the village districts:
A. Uses will not be allowed which significantly violate guidelines on the rate or amount of growth adopted by a village as a part of its comprehensive development plan.
B. Uses in a village are required to be consistent with a relevant provision of an adopted village comprehensive development plan.
C. Uses are encouraged which provide or materially contribute to lower-cost fuel or power.
D. Uses are encouraged which provide local employment in the villages.
E. Uses are encouraged that improve the delivery of water, sewer, health or other community services in the villages. (Ord. 10-14, 2011)
9.25.040 Subsistence conservation (SC) district standards.
Because subsistence use of lands and waters within the borough is the primary and highest priority use of all lands and waters, no commercial or industrial land or water uses and activities shall significantly impair the priority of the subsistence use of resources.
A. Uses involving boat, barge, air or ground traffic in the SC district shall avoid disrupting the migration of or subsistence use of whale, caribou, bird or other migratory species.
B. Commercial recreation users shall not interfere with subsistence use activities or resources. Interference with subsistence uses and resources includes the following:
1. Activities that would diminish subsistence use by displacing existing fish and wildlife populations, including the location of temporary camps in areas that could affect migration of caribou;
2. Activities that would interfere with subsistence harvests;
3. Activities that would disturb subsistence users including noise from repeated use of flight paths over areas used for subsistence during times of subsistence use; and
4. Disturbance of migrating caribou during the first 24 hours after the first group of caribou travels through an area.
C. Cumulative Effects. Applicants for major development projects shall consider and establish measures to avoid or minimize cumulative effects of new commercial development including effects from the project and effects of existing or reasonably foreseeable development on subsistence. The administrator and/or commission may require the developer to provide information on cumulative effects for projects that have a reasonable likelihood of significant adverse effects on subsistence uses or resources or other uses or resources.
D. During review of development proposals, the borough shall work with its villages to identify subsistence resource concerns and to develop permit conditions to ensure that commercial uses adequately address local concerns.
E. Management plans, master plans and development projects shall maintain traditional and customary access to subsistence resources unless alternate access is provided that is acceptable to the borough.
F. Local or traditional knowledge may be used to grant, deny or place conditions on permits when there is an indication that subsistence uses or resources may be adversely affected by the proposed use. (Ord. 10-14, 2011)
9.25.045 Subsistence conservation (SC) standards for subdistricts.
A. In addition to the specific conditions required in this section for each subdistrict, applicants shall include with the application a description of measures that will be implemented to protect subsistence resources and uses for activities that affect subsistence use in these subdistricts.
B. Sisualik Spit Subsistence Conservation Subdistrict.
1. Subsistence Uses. Uses and activities shall not significantly interfere with subsistence activities including, but not limited to, waterfowl hunting, marine mammal hunting, and fishing during times of subsistence use. Commercial or industrial uses of the Sisualik Spit uplands during times of subsistence use are prohibited unless there is an approved mitigation plan. Subsistence uses generally occur between June 1st and September 30th.
2. Marine Mammals. Uses and activities shall not have a significant adverse effect on marine mammals. Off-shore resource exploration extraction activities are prohibited during the months of April, May, June, September, and October unless there is an approved mitigation plan.
3. Priority Uses. Subsistence uses are the highest priority for this area followed by commercial fishing.
4. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
C. Cape Krusenstern Subsistence Conservation Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not interfere with subsistence activities unless there is an approved mitigation plan. Subsistence use activities generally occur between March 15th and October 31st.
2. Marine Mammals. Uses and activities not related to subsistence shall avoid or minimize effects on marine mammals and shall not significantly interfere with the subsistence harvest of marine mammals. Mineral exploration, mining and gravel extraction activities are prohibited when marine mammals are present between March 15th and July 15th and during the months of September and October unless there is an approved mitigation plan.
3. Tern Nesting Sites. Uses and activities not related to subsistence and/or to cultural resource studies shall avoid or minimize effects to tern nesting areas or subsistence uses of these areas.
4. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
D. Kobuk/Selawik Lakes Subsistence Conservation Subdistrict.
1. Subsistence Uses. Uses and activities not related to subsistence shall not adversely affect the following subsistence resources and activities during the time of subsistence use indicated below unless there is an approved mitigation plan.
a. Seal hunting (April – October).
b. Herring spawning (May – June).
c. Waterfowl hunting (April 15th – October).
d. Fishing (year-round).
e. Egg gathering (June 1st – July 31st).
f. Trapping.
g. Berry picking.
h. Caribou and moose (year-round).
2. Fish. Uses and activities shall be designed, sited, and operated to minimize effects to larval and juvenile fish and migrating and overwintering anadromous fish.
3. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
E. Cape Espenberg/Goodhope River Subsistence Conservation Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not adversely affect the following subsistence use activities which generally occur during the time noted unless there is an approved mitigation plan:
a. Seal hunting (May 1st – July 15th).
b. Moose hunting (September – May).
c. Waterfowl hunting (May 1st – October 31st).
d. Trapping (winter).
e. Egg gathering (June 1st – July 31st).
f. Fishing (year-round).
g. Berry picking (summer and fall).
2. Marine Mammals. Off-shore and on-shore mineral/oil and gas exploration, mining and gravel extraction activities shall maintain a one-mile buffer from identified spotted seal haul-out areas when seals are present. Uses and activities shall avoid significant adverse effects on the subsistence harvest of spotted seals.
3. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
F. Kobuk River Delta Subsistence Conservation Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not adversely affect the following activities unless there is an approved mitigation plan:
a. Waterfowl hunting (May 1st – August 15th).
b. Sheefish fishing (spring and summer).
c. Muskrat trapping (winter and spring).
2. Waterfowl Nesting and Staging. Uses and activities shall be sited and scheduled to avoid waterfowl staging (spring and fall) and nesting periods (summer).
3. Fish. Commercial uses requiring water intake or habitat alteration affecting this area shall be sited, designed and operated to avoid significant adverse effects on juvenile fish, anadromous fish migration, or overwintering fish populations.
4. Effects Analysis. Applicants shall prepare an analysis of effects on subsistence, fish and wildlife habitat, and fish and wildlife populations.
5. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
G. Selawik River Delta Subsistence Conservation Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not adversely affect the following subsistence use activities unless there is an approved mitigation plan:
a. Waterfowl hunting (April 1st – October 31st).
b. Sheefish fishing (spring).
c. Muskrat trapping (winter and spring).
d. Caribou (August 1st – October 31st).
e. Moose (August 1st – September 30th).
2. Waterfowl. Uses and activities shall be sited and scheduled to avoid waterfowl staging and nesting periods.
3. Fish. Uses and activities shall not have a significant adverse effect on fish, including anadromous fish migration and overwintering fish populations and fish in their juvenile and larval stages. Uses and activities shall not significantly interfere with the subsistence harvest of fish.
4. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
H. Salmon River Subsistence Conservation Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not adversely affect the following subsistence use activities unless there is an approved mitigation plan.
a. Caribou hunting (mid-August to mid-October).
b. Salmon and whitefish fishing (August – September).
c. Furbearer trapping.
2. Caribou Migration. Nonsubsistence uses or activities in this subdistrict are prohibited during caribou migration unless there is an approved mitigation plan.
3. Fish Spawning. Gravel extraction, placer mining, and placement of in-stream structures are prohibited within fish spawning areas unless there is an approved mitigation plan.
4. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
5. Effects Analysis. Applicants for nonsubsistence uses must submit with the application an analysis of potential effects on fish, habitat, and caribou migration.
I. Selawik-Hunt-Redstone Rivers Subsistence Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not adversely affect subsistence caribou hunting between mid-August and mid-October unless there is an approved mitigation plan.
2. Caribou Migration. Nonsubsistence uses or activities shall cease operations during the first 24 hours of caribou migration.
3. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
4. Effects Analysis. Applicants for nonsubsistence uses must submit with the application an analysis of potential effects on caribou migration and habitat.
J. Maniilaq River-Ambler Lowlands Subsistence Conservation Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not adversely affect the following subsistence activities unless there is an approved mitigation plan:
a. Caribou hunting (mid-August – mid-October).
b. Waterfowl hunting (spring and summer).
c. Trapping (fall and winter).
2. Caribou Migration. Nonsubsistence uses or activities shall cease operations during the first 24 hours of caribou migration.
3. Water Quality. Mining activities shall avoid or minimize effects to water quality including increased sediment load in waterbodies.
4. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
5. Effects Analysis. Applicants for nonsubsistence uses must submit with the application an analysis of potential effects on fish, habitat, and caribou migration.
K. Inmachuk River Subsistence Conservation Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not adversely affect the following subsistence activities unless there is an approved mitigation plan:
a. Fishing (year-round);
b. Moose, caribou, and musk ox hunting (August – March);
c. Beluga whale hunting (June and July);
d. Trapping (winter);
e. Waterfowl hunting (April – September);
f. Egg gathering (May – July); and
g. Berry picking and herb gathering (summer and fall).
2. Waterfowl. Uses and activities shall avoid effects to waterfowl staging (spring and fall) and nesting areas (summer).
3. Fish Spawning. Gravel extraction, placer mining, and placement of in-stream structures are prohibited within fish spawning areas unless there is an approved mitigation plan.
4. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
5. Effects Analysis. Applicants for nonsubsistence uses must submit with the application an analysis of potential effects on subsistence and to fish, habitat, and caribou migration.
L. Buckland River Subsistence Conservation Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not adversely affect the following subsistence activities unless there is an approved mitigation plan:
a. Waterfowl hunting (April 15th – June 15th and August 15th – September 15th);
b. Seal hunting (April 15th – October 31st);
c. Moose hunting (September – March);
d. Fishing (year-round); and
e. Berry picking and herb gathering (summer and fall).
2. Salmon Spawning. Uses and activities are prohibited in salmon spawning areas unless there is an approved mitigation plan. Prior to gravel extraction, placer mining and placement of in-stream structures, the applicant shall survey waterbodies for salmon spawning areas.
3. Waterfowl. Uses and activities shall not have a significant adverse effect on waterfowl, waterfowl staging areas, or waterfowl nesting areas, or significantly interfere with the subsistence harvest of waterfowl.
4. Marine Mammals. Uses and activities shall not have a significant adverse effect on marine mammals or significantly interfere with the subsistence harvest of marine mammals.
5. Moose. Uses and activities shall not have a significant adverse effect on moose populations or moose habitat.
6. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
7. Effects Analysis. Applicants for nonsubsistence uses must submit with the application an analysis of potential effects on subsistence and to fish, habitat, and caribou migration.
M. North Fork-Squirrel-Omar River Subsistence Conservation Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not adversely affect the following subsistence activities unless there is an approved mitigation plan:
a. Caribou hunting (mid-August – mid-October).
b. Fishing (year-round).
c. Waterfowl hunting (September – October).
d. Trapping (winter).
e. Egg gathering (May – July).
2. Fish Spawning. Gravel extraction, placer mining and placement of in-stream structures are prohibited in fish spawning areas unless there is an approved mitigation plan.
3. Caribou Migration. Nonsubsistence uses shall cease operations during the first 24 hours of caribou migration.
4. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
5. Effects Analysis. Applicants for nonsubsistence uses must submit with the application an analysis of potential effects on subsistence and to fish, habitat, and caribou migration.
N. Kivalina Coast Subsistence Conservation Subdistrict.
1. Subsistence Uses. Nonsubsistence uses and activities shall not adversely affect the following subsistence activities unless there is an approved mitigation plan:
a. Marine mammal hunting (March 15th – July 15th).
b. Waterfowl hunting (April 1st – May 31st and September 1st – 30th).
c. Egg gathering (May – July).
2. Marine Mammals. Uses and activities shall not have a significant adverse effect on marine mammals. Between March 15th and July 15th and September 1st and October 31st.
3. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
4. Effects Analysis. Applicants for nonsubsistence uses must submit with the application an analysis of potential effects on subsistence and to fish, habitat, and caribou migration.
O. Onion Portage Subsistence Conservation Subdistrict.
1. Prohibited Uses. Oil and gas and mining exploration and development, minor and major resource extraction, and development of facilities are prohibited in this subdistrict.
2. Caribou Migration. Nonsubsistence uses and activities, including river floating, shall cease operations during the first 24 hours of caribou migration.
3. Fish. Nonsubsistence uses and activities shall not interfere with subsistence fishing and fish migration during June through October.
P. Eschscholtz Bay Subsistence Conservation Subdistrict.
1. Prohibited Uses. Oil and gas and mining exploration and development and minor and major resource extraction are prohibited in this subdistrict.
2. Priority Uses. The following uses are priority uses in the area and activities shall avoid significant adverse effects to these uses and resources:
a. Subsistence activities.
b. Cultural resource management.
c. Fish and wildlife management.
Q. Elephant Point/Choris Peninsula Subsistence Conservation Subdistrict.
1. Prohibited Uses. Oil and gas and mining exploration and development, minor and major resource extraction, and development of facilities are prohibited in this subdistrict.
2. Beluga Whales. Nonsubsistence uses and activities shall not adversely affect marine mammals or related subsistence activities during beluga whale hunting in June and July.
3. Priority Uses. The following uses are priority uses in the area and activities shall avoid significant adverse effects to these uses and resources:
a. Subsistence activities.
b. Cultural resource management.
c. Fish and wildlife management.
R. Upper Kivalina River Subsistence Conservation Subdistrict.
1. Prohibited Uses. The following uses and activities are prohibited: minor and major resource extraction, gravel extraction, placer mining, in-stream structures, pipelines, water withdrawal, and water discharges (during fall, winter and spring).
2. Priority Uses. The following uses are priority uses in the area and activities shall avoid significant adverse effects to these uses and resources:
a. Fish spawning.
b. Fish overwintering.
c. Fish and wildlife management.
3. Water Quality. Water discharges shall be treated to maintain water quality.
4. Water Flow. Activities requiring water withdrawal during summer months shall maintain water flows necessary to support fish and wildlife habitat.
S. Pah River Subsistence Conservation Subdistrict.
1. Subsistence Uses. Uses and activities not related to subsistence or cultural resource management are prohibited within the Pah River Cultural Resource Protection Area. Nonsubsistence uses and activities shall not adversely affect the following subsistence activities:
a. Caribou hunting (mid-August – mid-October).
b. Waterfowl hunting (spring and summer).
c. Trapping (fall and winter).
2. Caribou Migration. Nonsubsistence uses or activities shall cease operations during the first 24 hours of caribou migration.
3. Water Quality. Mining activities shall avoid or minimize effects to water quality including increased sediment load in waterbodies.
4. Alternative Sites. To the extent feasible and prudent, activities and facilities shall be located outside of this subdistrict.
5. Effects Analysis. Applicants for nonsubsistence uses must submit with the application an analysis of potential effects on subsistence and to fish, habitat, and caribou migration.
T. Wulik River Subsistence Conservation Subdistrict.
1. Prohibited Uses. Uses and activities shall not have a significant adverse impact on fish, including fish in their juvenile and larval stages, and their use of the priority subsistence use area, including spawning, anadromous fish migration and overwintering fish populations, or significantly interfere with the subsistence harvest of fish. Permits may be granted or denied using information regarding local subsistence practices that may be adversely affected by the proposed use.
2. Priority Uses. The following uses are priority uses in the area and activities shall avoid significant adverse effects to these uses and resources:
a. Subsistence activities;
b. Fish spawning;
c. Fish overwintering;
d. Fish migration;
e. Fish and wildlife management.
3. Water Flow. Activities requiring water withdrawal during summer months shall maintain water flows necessary to support fish and wildlife habitat.
4. Water Quality. Water discharges shall be treated to maintain water quality. (Ord. 10-14, 2011)
9.25.050 Habitat conservation (HC) standards.
The intent of the HC district is to restrict uses and activities to protect habitat with exceptional productivity or habitat that is critical for the survival of a population of a species.
A. Uses and activities in the HC district shall not adversely affect the habitat functions that support the living resources in the HC unless there is an approved mitigation plan.
B. Project activities shall not reduce the productivity of fish habitat. Productivity is directly related to the ability of the habitat to support spawning, migration, rearing, and overwintering.
C. Project activities shall not alter natural hydrological conditions.
D. Permanent structures are not allowed in the HC district.
E. Temporary structures may be allowed if there are no adverse effects to habitat or to associated fish and wildlife populations.
F. Project activities shall not have an adverse effect on migrating caribou.
G. The following standards apply to the specific habitat conservation districts:
1. Kobuk River Sheefish-Chum Salmon-Whitefish Spawning Area.
a. Prohibited Uses. Gravel extraction and placer mining activities are prohibited within the active floodplain.
b. Priority Uses. The following uses are priority uses in the area and activities shall avoid significant adverse effects to these uses and resources:
i. Subsistence activities.
ii. Fish spawning.
iii. Fish migration.
iv. Fish and wildlife management.
c. Water Quality. Water discharges shall be treated to maintain water quality within this subdistrict.
d. Spawning Habitat. Commercial and industrial uses shall maintain natural water flows. Uses and activities shall not have a significant adverse effect on sheefish spawning habitat or significantly interfere with the subsistence harvest of sheefish. Permits may be granted or denied using information from ADF&G Technical Paper No. 175, “Subsistence and Sport Fishing of Sheefish on the Upper Kobuk River, Alaska,” regarding local subsistence practices that may be adversely affected by the proposed use.
e. Buffer Zone. Outside villages, non-water-dependent commercial and industrial uses within 100 feet of the river’s ordinary high water mark are prohibited. Within 500 feet of ordinary high water mark, these activities must minimize on-site erosion to avoid increased sediment discharge into the river.
2. Selawik River Sheefish-Whitefish Spawning Area.
a. Prohibited Uses. Gravel extraction and placer mining activities are prohibited within the active floodplain.
b. Priority Uses. The following uses are priority uses in the area and activities shall avoid significant adverse effects to these uses and resources:
i. Subsistence activities.
ii. Fish spawning.
iii. Fish migration.
iv. Fish and wildlife management.
c. Water Quality. Water discharges shall be treated to maintain water quality within this subdistrict.
d. Buffer Zone. Outside villages, non-water-dependent commercial and industrial uses within 100 feet of the river’s ordinary high water mark are prohibited. Within 500 feet of ordinary high water mark, these activities must minimize on-site erosion to avoid increased sediment discharge into the river.
3. Noatak River Chum Salmon Spawning Area.
a. Prohibited Uses. Except from existing gravel pits, gravel extraction, mining and placer mining activities are prohibited within the active floodplain.
b. Priority Uses. The following uses are priority uses in the area and activities shall avoid significant adverse effects to these uses and resources:
i. Subsistence activities;
ii. Fish spawning;
iii. Fish overwintering;
iv. Fish migration;
v. Fish and wildlife management.
c. Water Quality. Water discharges shall be treated to maintain water quality.
d. Buffer Zone. Outside villages, non-water-dependent commercial and industrial uses within 100 feet of the river’s ordinary high water mark are prohibited. Within 500 feet of ordinary high water mark, these activities must minimize on-site erosion to avoid increased sediment discharge into the river.
e. Caribou Migration. Commercial or industrial uses are prohibited in this subdistrict during migration of the Western Arctic caribou herd unless there is an approved mitigation plan. Permits may be granted, denied or conditioned using information from ADF&G Technical Paper No. 162, “The Noatak River: Fall Caribou Hunting and Airplane Use,” regarding local subsistence practices that may be adversely affected by the proposed use. Uses and activities shall not have a significant adverse effect on caribou or significantly interfere with the subsistence harvest of caribou. (Ord. 10-14, 2011)
9.25.060 General conservation (GC) district standards.
A. Uses involving boat, barge, air and ground traffic in the GC district shall avoid or minimize adverse effects on fish and wildlife resources.
B. Uses shall avoid or minimize interference with subsistence use activities or resources.
C. Cumulative Effects. Applicants for major development projects shall consider and establish measures to avoid or minimize cumulative effects of new commercial development including effects from the project and effects of existing or reasonably foreseeable development on subsistence. The commission may require the developer to provide information on cumulative effects for projects that have a reasonable likelihood of significant adverse effects on subsistence uses or resources or other uses or resources.
D. During review of development proposals, the borough shall work with its villages to identify potential effects on uses and natural resources and to develop permit conditions to address local concerns about such effects.
E. Local or traditional knowledge may be used to grant, deny or place conditions on permits when other uses or resources may be adversely affected by the proposed use. (Ord. 10-14, 2011)
9.25.070 Resource development (RD) district standards.
A. Uses and activities in RD districts must either be approved under one of the permits approved under provisions in Chapter 9.16 or 9.20 NABC, or approved under a master plan approved under provisions in NABC 9.20.070 or 9.20.080. Uses and activities shall meet the requirements in the areawide standards and requirements in the master plan, if applicable.
B. Major Resource Extraction Activities.
1. Siting Considerations. The siting and approval of major energy facilities shall be based on the following standards:
a. Facilities shall be sited so as to minimize adverse environmental and public health effects while satisfying industrial requirements;
b. Facilities shall be sited so as to be compatible with existing adjacent uses and projected community needs;
c. To the extent feasible and prudent, facilities shall be consolidated and sited near existing infrastructure, including roads, docks and airstrips;
d. To the extent feasible and prudent, existing energy facilities, including pipelines and transmission lines, shall be used;
e. Applicants shall cooperate with private landowners, local governments, developers, and state and federal agencies in the development of facilities;
f. Facilities shall be sited in areas with sufficient acreage to allow for reasonable expansion of facilities;
g. Harbors and shipping routes shall be sited in areas with the least exposure to reefs, shoals, drift ice and other obstructions;
h. Best available vessel traffic control and collision avoidance systems shall be used;
i. Sites shall be selected where development will require minimal site clearing, dredging and construction in productive habitats;
j. Facilities shall be sited to minimize the probability, along shipping routes, of spills or other forms of contamination which affect subsistence use areas, commercial fishing grounds, spawning grounds, and other biologically productive or vulnerable habitats, including marine mammal rookeries and hauling-out grounds and waterfowl nesting areas;
k. Facilities shall be sited to allow the free passage and movement of fish and wildlife with due consideration for historic migratory patterns;
l. Facilities shall be sited in areas of least biological productivity, diversity, and vulnerability and where effluents and spills can be controlled or contained;
m. Facilities shall be sited where winds and air currents maximize dispersal of airborne emissions which cannot be captured before escape into the atmosphere;
n. Sites shall be selected in areas which are designated for industrial purposes and where industrial traffic is minimized through population centers; and
o. Sites shall be selected where vessel movements will not result in overcrowded harbors or interfere with fishing operations and equipment.
2. Applicants for major resource extraction projects shall include measures in the application or master plan regarding restoration and rehabilitation of the project area at the end of the useful life of the facilities. These measures shall address how the project site will be restored, describe when these measures will be implemented, and document expected costs and resources available to implement the measures. The commission may require additional measures to ensure the project area will be restored or rehabilitated. (Ord. 10-14, 2011)
9.25.080 Transportation corridor (TC) district standards.
A. Uses and activities in TC districts must either be rezoned under provisions in NABC 9.20.060 or approved under a master plan approved under provisions in NABC 9.20.070 or 9.20.080. In addition to the requirements in this standard, uses and activities shall meet the requirements in the areawide standards and requirements in the master plan, if applicable.
B. Any expansions or reactivation of airstrips must be done on the basis of plans and permits reviewed and approved by the borough and affected villages. Land use at airstrips outside of village districts shall be directly related to the primary industrial uses in the area.
C. To the extent feasible and prudent, transportation corridors shall not be located adjacent to waterbodies. Stream banks and lake shores of fish-bearing waters and drinking water supplies shall be protected by providing an adequate buffer strip of undisturbed vegetation to mitigate adverse effects. This standard does not prohibit bridge abutments on or adjacent to stream banks where necessary.
D. Activities in sensitive habitats may be prohibited or restricted including wolf den areas, mineral licks, and caribou calving areas during the calving season.
E. Existing commercial or recreational uses which have been validly established on specific parcels or sites prior to the effective date of this title are allowed to continue as nonconformities. New commercial or recreational uses are not allowed within the transportation corridor, except by approval or permit.
F. Red Dog Transportation Corridor Subdistrict.
1. Uses in this transportation corridor shall be directly related to access between the mine and the port, future resource-extraction-related development, or with approval of the mine owner, village access to port, airport or other facilities associated with the Red Dog access road.
2. Subsistence. This standard does not preclude the operator from allowing access for subsistence uses. Uses and activities in this transportation corridor shall be sited, scheduled and operated to minimize adverse effects on caribou migration, anadromous and resident fish populations according to existing arrangements with the mine operator and the NANA Regional Corporation and the requirements of state and federal law. (Ord. 10-14, 2011)
9.25.090 Cooperative planning.
Inupiat people have traditionally used a process called “Sivunniuq” to ensure cooperative decision making occurs. Literally translated as “people meeting together to make a plan,” this concept is especially important for projects with the potential to significantly affect uses and resources important to borough residents. Applied to development projects, this process will help identify potential conflicts early in the process, develop alternatives to resolve differences and avoid project delays.
A. For projects with a potential to have significant effects on local residents, including the resources and uses on which they depend, the borough shall work closely with state and federal agencies to ensure local residents have the opportunity to be involved early in the planning process for project development. Specifically, the borough shall work with state and federal agencies and applicants early in the project planning process to:
1. Ensure compliance with provisions in this title and enforceable policies of the coastal management plan;
2. Ensure early consideration of issues and concerns of borough residents and landowners; and
3. Schedule one or more preapplication meetings to discuss the project description, review maps of the proposed development area, discuss the location and size of proposed facilities, and discuss the proposed construction schedule, effects to resources and uses, and mitigation measures that would address potential project effects. (Ord. 10-14, 2011)