Supreme Court will hear a second Clean Water Act case next term and decide if mining waste can be dumped in lakes and streams as “fill”

The Supreme Court will hear a second Clean Water Act case next term and decide if mining waste can be dumped into lakes and streams as “fill.”  A mining company, Coeur Alaska, sought permission to dispose of waste from its Kensington Gold Mine into nearby Lower Slate Lake.  However, Coeur Alaska contended that its waste was “fill” and not “pollution.” Thus, it claimed that discharge of the mining waste was only subject to section 404 of the Clean Water Act (which primarily applies to filling wetlands) and did not need a permit to pollute the lake from the EPA pursuant to CWA § 301.  The US Army Corps of Engineers, which administers the § 404 program in Alaska, agreed with the mining company and permitted the activity under § 404.  Several environmental groups led by the Southeast Alaska Conservation Council challenged the Corps’ decision.  The U.S. Court of Appeals for the Ninth Circuit agreed with the environmental groups and struck down the Corps’ fill-disposal permit.  The court determined that the proposed discharge (piping a slurry of 210,000 gallons of process wastewater and 1,440 tons of tailings each day to the bottom of Lower Slate Lake) is not simply “fill” but really a “froth-flotation.”  Further, since the waste would be dumped and not used to “fill” anything, such a classification is not justified under the Clean Water Act.  See Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 486 F.3d 638 (9th Cir. 2007).  The Supreme Court has the case on its docket as Coeur Alaska Inc. v. Southeast Alaska Conservation Council, no. 07-984 (consolidated with no. 07-990).