Last Friday, the Army Corps of Engineers quietly gave Kensington gold mine permission to kill an Alaskan lake with mine tailings. It’s disappointing for those of us who’ve been fighting for years to keep this lake—and the Clean Water Act—from being trashed.
Technically, the Corps had every right to grant the permit. So spoke the U.S. Supreme Court earlier this year in a narrow ruling that said a Bush-era twist of the Clean Water Act allowed a slurry of toxic, chemically-processed mine tailings to be defined as "fill." Fill, such as rock, has long been legal to place in our waterways under permits issued by the Corps.
Earthjustice, which argued against the permit in court, was disappointed by the ruling, but had good reason to believe the dumping would not be allowed.
For one thing, the ruling was based on the Bush definition of fill—a definition that easily could be erased by an executive act of the Obama administration. And only a few weeks ago, the Environmental Protection Agency sent a strongly-worded letter urging the Corps to require a land-based disposal site rather than extending the lake-dumping permit, which had expired before the dumping could begin.
Imagine our disappointment when the Corps snubbed EPA, and the spirit of the Clean Water Act, by telling Kensington to dump away.
Clearly, these two federal agencies don’t see eye to eye on the issue, but just as clearly, this issue is far from settled. As noted by Tom Waldo, the Earthjustice attorney who argued the case, EPA could overrule the Corps. But, more importantly, Tom is counting on the Obama administration to remove the Bush rewrite of the Clean Water Act policies at the heart of this dispute.