The federal Clean Water Act cannot be used to destroy an Alaskan lake, a federal appeals court ruled today, in a decision that may set precedent about how the act is interpreted nationwide.
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 gold mining company Coeur d'Alene Mines dump toxic mine tailings into a lake near Juneau, Alaska.
"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," the court said in the first part of a two part ruling on Kensington Mine dumping operations.
The 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.
The decision could prevent mines across the United States from dumping into lakes, streams and rivers, said Tom Waldo, attorney for Earthjustice, the non-profit law firm that filed the appeal on behalf of the Southeast Alaska Conservation Council, Lynn Canal Conservation, and the Sierra Club.
"The Kensington permit was a test case by the Bush administration to resurrect destructive mining practices from the pick-and-shovel days," Waldo said. "We've learned from the mistakes of the past. The Clean Water Act prohibited these practices, and today's court ruling confirms that."
Waldo is concerned about similar operations elsewhere in Alaska, expecially the proposed Pebble Mine in Bristol Bay, which hosts the world's largest sockeye salmon fishery.
Pebble Mine, like Kensington, is designed to dump vast quantities of toxic mine tailings into lakes. A coalition of business, environmental, fishing and native groups is opposing the Pebble Mine because of its damaging potential.
In 1982, the U.S. Environmental Protection Agency adopted regulations under the Clean Water Act prohibiting new gold mines from dumping their tailings into waterways.
Yet, the Corps' permit granted Coeur d'Alene Mines Corporation the right to dump 210,000 gallons per day of a toxic waste slurry into Lower Slate Lake, despite the availability of disposal methods less damaging to the environment. The slurry is a byproduct of a gold extraction process that blends water with crushed ore.
Attorneys representing mine developers and the federal government said the slurry is legal fill material in their view of the law, but the court rejected that argument.
The mine site is in Berners Bay, about 35 miles northwest of Juneau. The disputed permit would fill Lower Slate Lake, a 23 acre wooded, sub-alpine lake in the Berners Bay watershed. All fish and most other life forms would have been killed.
Coeur d'Alene Mines already had approval to build a conventional dry land tailings disposal facility, but the company applied for a permit to dump tailings directly into the lake as a cost-cutting measure.
This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, etc. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.