Can A Lake Be Filled & Fish Killed Under CWA?

Dec 4: Environmental lawyers at Earthjustice are challenging a Clean Water Act (CWA) permit before the Ninth Circuit Court of Appeals that lets Coeur d'Alene Mines Corporation dump toxic waste into a lake, killing all fish for at least the 10-year life of the permit. According to a release, the U.S. Army Corps of Engineers issued the permit after "redefining language in the law so that toxic wastewater could be considered legally permitted fill." If allowed to go forward, the Kensington gold mine would be the first mine to kill a U.S. lake using the new, weakened dumping standard. Earthjustice expressed concern that if allowed to proceed, this mining operation would set a precedent, potentially spurring growth of such operations elsewhere in Alaska or the lower-48 states.

The Army Corps' new interpretation contradicts what the law actually says, argued Earthjustice attorney Tom Waldo, assisted by Eric Jorgensen, managing attorney in Juneau for Earthjustice. Waldo said, "The plain language of the Clean Water Act simply prohibits the discharge authorized by the Corps of Engineers." The argument revolves around a gold extraction process that creates 210,000 gallons per day of a toxic waste slurry. Kensington chose lake dumping despite the availability of disposal methods less damaging to the environment. Attorneys representing mine developers and the federal government said the slurry is legal fill in their view of the law. On August 24, 2006, the Ninth Circuit issued a temporary injunction halting activities and the dumping of "fill" into Lower Slate Lake at the site of the proposed Kensington Gold Mine (Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers and Coeur Alaska, Case No. 06-35679).

Access an Earthjustice release with links to additional information (click here). Access a background document with further details (click here). Access the 8/24/06 injunction (click here). Access the original 8/4/06 Federal District Court decision (click here). Access additional background from the Southeast Alaska Conservation Council website (click here). [*Water]