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]

CWA Can't Be Used To Destroy A Lake

Mar 16: The U.S. Court of Appeals, Ninth Circuit has issued an order saying that the Federal Clean Water Act (CWA) cannot be used to destroy an Alaskan lake [See WIMS 12/06/06] (Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers and Coeur Alaska, Case No. 06-35679). Earthjustice who represented the Southeast Alaska Conservation Council, Lynn Canal Conservation, and the Sierra Club, said the ruling that may set precedent about how the Act is interpreted nationwide.

Earthjustice indicated that although the full ruling is not yet released, the 9th Circuit Court of Appeals said the U.S. Army Corps of Engineers was wrong in letting a gold mine company dump toxic mine tailings into a lake near Juneau. In the first of a two-part ruling on Kensington Mine dumping operations, the Appeals Court said, "In issuing its permit to Coeur Alaska for the use of Lower Slate Lake as a disposal site, the Corps violated the Clean Water Act," Today's ruling disallowed a diversion ditch which the court said was environmentally destructive and which violated a previous injunction against the mine. But, the court said it would rule against the entire dumping procedure in its final opinion.

Tom Waldo, attorney for Earthjustice, the non-profit law firm that filed the appeal on behalf of the citizen and conservation groups said, "The ruling should prevent mines across the United States from likewise dumping into lakes, streams and rivers. The Kensington permit was a test case by the Bush Administration to resurrect destructive mining practices from the pick-and-shovel days. We've learned from the mistakes of the past. The Clean Water Act prohibited these practices, and today's court ruling confirms that."

Waldo expressed hope that the court ruling would deter such operations elsewhere in Alaska -- notably the proposed Pebble Mine in Bristol Bay, home of the world's largest sockeye salmon fishery. Pebble Mine, like Kensington, is designed to dump vast quantities of toxic mine tailings into lakes. A broad coalition of business, environmental, fishing and native groups is opposing the mine because of its damaging potential.

Access a release from Earthjustice (click here). Access the first part of the ruling (click here). [*Water]

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]