In its second Clean Water Act case of the term, the U.S. Supreme Court has ruled that the mining waste can be dumped into waterbodies as “fill” under the Clean Water Act. The mining company, Coeur Alaska, sought permission to dispose of waste from its Kensington Gold Mine into nearby Lower Slate Lake as “fill” and not “pollution” under the Clean Water Act. Thus, the company 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. In Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 486 F.3d 638 (9th Cir. 2007), 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.
The Supreme Court, in Coeur Alaska v. Southeast Alaska Conservation Council, reversed the 9th Circuit’s decision and relied on an internal agency memo interpreting the Clean Water Act to only subject the disposal of fill to section 404. The memo, written in May 2004 by Diane Regas, then the Director of the EPA’s Office of Wetlands, Oceans and Watersheds, to Randy Smith, the Director of the EPA’s regional Office of Water overseeing the mine, essentially sided with the Corps over the EPA. A majority of the Supreme Court found that the Clean Water Act was ambiguous, and deferred to the agency memo’s ultimate interpretation. The Supreme Court also seemed to take some comfort in the fact that the EPA could still exercise a veto power over a permit issued by the Corps under section 404.
This decision could have significant implications for water protection in the Great Lakes and nationwide. It could allow mining waste to be dumped in the Great Lakes, as well as the many mountain streams and rivers where mountaintop coal mining is wreaking havoc on the landscape. However, protections for freshwater could also be restored by the Obama administration and Congress. Since the Supreme Court ruled that the Clean Water Act’s language was ambiguous and relied on an agency memo for interpretation, a new interpretation (especially in the form of an agency rule) would be the easiest fix. Legislation has also been introduced in the U.S. Senate (SB 696) to redefine “fill” under the Clean Water Act. As the impact of the decision plays out nationwide, both the Obama administration and Congress will be under pressure to fix the problem and restore protections for freshwater.
