Ninth Circuit Vacates Army Corps Lake Filling Permit

May 22: In the case of Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35679. The case presents the question of whether the issuance of a permit by the U.S. Army Corps of Engineers violates the Clean Water Act [See WIMS eNewsUSA Blog posts on this issue]. The permit issued in this case authorizes Coeur Alaska, Inc., to discharge process wastewater containing tailings from its gold mine into a lake that is a navigable water of the United States. Coeur Alaska proposed to discharge daily 210,000 gallons of process wastewater containing 1,440 tons of tailings from its mine into Lower Slate Lake. The tailings in the discharge will raise the bottom elevation of the lake by 50 feet. A 90-foot high, 500-foot long dam will be built to contain the discharge and the area of the lake will be increased about three-fold.

The U.S. Army Corps of Engineers contends that the permit was properly granted under § 404 of the Clean Water Act, which relates to the disposal of “fill material,” and that it is not subject to the effluent restrictions of § 301 or § 306 of the Clean Water Act. The plaintiffs contend that this mine disposal discharge must comply with the effluent restrictions of § 301 and § 306, and that any permit allowing discharge must be issued by U.S. EPA. The district court held that the issuance of the permit was proper. The Appeals Court reversed and remanded with instructions to vacate the permit.

In its conclusion the Appeals Court said, "In conclusion, we reverse the district court, remand to the district court to vacate the permits issued to Coeur Alaska and Goldbelt, and vacate the RODs that approved Coeur Alaska’s and Goldbelt’s plans of operations. The Corps violated the Clean Water Act by issuing a permit to Coeur Alaska for discharges of slurry from the froth-flotation mill at the Kensington Gold Mine. EPA’s performance standard for frothflotation mills, promulgated pursuant to § 301 and § 306 of the Clean Water Act, prohibits discharges from such operations into the navigable waters of the United States. No exceptions are provided by either the regulation or the statute.

"Even though the discharge in this case facially qualifies for the permitting scheme under § 404 of the Clean Water Act because it will change the bottom elevation of Lower Slate Lake, the discharge is nevertheless prohibited by the clearly applicable and specific performance standard. The plain language and structure of the Clean Water Act demonstrate that EPA’s performance standard governs in this case. Also, the agencies’ statements made during promulgation of the regulation defining 'fill material,' as well as their statements made to Coeur Alaska during the lengthy permitting process, indicate that they intended this result. Thus, the district court erred in granting summary judgment in favor of the defendants. The case is remanded to the district court for action pursuant to this opinion."

Access the complete 31-page opinion (click here). [*Water]