SCOTUS Upholds CWA - Palmer Project On Hold

A major win for the Clean Water Act (CWA) at the U.S. Supreme Court for protecting waters in Alaska and the whole nation!  By a 6-3 margin, SCOTUS affirmed a 9th Circuit decision in the “Maui” case, which requires a surface water discharge permit when pollutants released into groundwater are likely to contaminate nearby surface waters.  

ACWA, along with Lynn Canal Conservation, the Chilkat Indian Village, Rivers Without Borders, and the Southeast Alaska Conservation Council, has been opposing the Palmer Project in S.E. Alaska for years because of its all but certain impacts to the Chilkat River, the valley’s salmon runs, and the bald eagles and brown bears that have made the Chilkat Valley famous worldwide.  Constantine Minerals Resources out of Vancouver B.C has been developing the copper/zinc deposit, and in 2019 received a groundwater discharge permit for wastewater that would be released a few yards from creeks critical for local salmon runs.  ACWA’s challenge to the permit will now almost certainly be upheld.  A surface water discharge permit will include far stricter limits on pollution and possibly make the mine too expensive to develop.  It will also provide for a federal permit review and access to federal court. 

In April 2019, Alaska’s Department of Environmental Conservation (DEC), at the company’s request, issued a draft groundwater discharge permit for the contaminated wastewater that would be generated by the digging of a mile+ long tunnel under the Saskiya Glacier.  The company predicts 360,000 gpd of wastewater will be generated and their plan for “treatment” includes settling ponds located 100 feet from Glacier Creek and underground gravel filters to be located less than 20 feet from Hangover Creek just before it feeds into Glacier Creek.  A couple of miles downstream Glacier Creek provides spawning habitat to S.E. Alaska’s second biggest run of Coho salmon. 

 

ACWA immediately questioned DEC’s permit decision because discharges to groundwater in close proximity to surface waters, and where the substrate (in this case, gravel) would facilitate a mixing of groundwater and surface water, are supposed to require a surface water discharge permit.  The difference in the permits is huge: the groundwater discharge permit is administered by the State and is not bound by any numerical limitations on pollution.  A surface water discharge permit must contain limits based on the State’s Water Quality Standards, scientifically developed numerical limits on metals, hydrocarbons, pH, ammonia, turbidity, etc.  It also requires much more extensive background information on the area, and the permit gets reviewed by the EPA.  That too is critical, because a challenge to the permit will end up in federal court instead of state court.  

DEC claimed they had the discretion to choose the permit path based on a case in Hawai’i (Maui County v. Hawai’i Wildlife Federation) that was scheduled to be heard by the U.S. Supreme Court (SCOTUS).  Their claim to such discretionary authority was absurd - the 9th Circuit decision on the Maui case was the law if/and until SCOTUS reversed the lower court’s decision.  Nevertheless, DEC ignored our objections and issued the final permit in July 2019.  We filed a challenge, asking the permit to be reviewed. 

 

Two months later, the Maui County Commissioners voted to settle the case, which would have removed it from the SCOTUS docket.  But the Maui Mayor refused to sign the settlement papers and it was heard by SCOTUS in November.  Six months later, the decision is out, and with Roberts and Kavanaugh joining the court’s liberal justices, the 9th Circuit decision was affirmed. 

The next step should be DEC’s revocation of the permit, followed by a Constantine decision on whether to pursue the more stringent and protective – and much more expensive in terms of compliance and penalties - surface water discharge permit.  Even if they do, it will take a year or two to develop, notice, and finalize, keeping the certain damage from continued exploration at bay.  Meanwhile, Constantine is almost out of money.  They had already decided to postpone their 2020 plans until 2021 because of a lack of operating funds, and with their stock trading at ~$.10/share, they may be hard-pressed to raise enough money to continue. 

Stay tuned for further developments…