Hudbay warns it may challenge federal authority requiring Clean Water Act permit for its Rosemont copper mine


Toronto-based Hudbay Minerals Inc. is warning the U.S. Army Corps of Engineers that it may legally challenge the Corps’ authority requiring Hudbay’s Rosemont Copper Company subsidiary to obtain a Clean Water Act permit prior to beginning construction of the proposed Rosemont Mine.

Neither Hudbay, nor Rosemont’s previous owner, have previously challenged the Corps’ jurisdictional authority over the proposed mine.

Hudbay’s salvo comes after the Corps’ Los Angeles district office recommended last July that Rosemont’s application for the permit be denied. The Corps’ South Pacific Division in San Francisco is reviewing the permit application and is expected to make a decision later this year.

Hudbay vice-president Patrick Merrin stated in a Nov. 17 letter to the Corps that the company will likely challenge the Corps’ permitting authority if the federal agency refuses to issue Rosemont’s request for the permit that would allow its mile-wide, half-mile deep open-pit copper mine to dump waste rock and mine tailings on 3,000 acres of the Coronado National Forest.

The waste piles, that would tower up to 900 feet high, would destroy washes, seeps and springs that drain the eastern slope of the Santa Rita Mountains and contribute to the recharge of metropolitan Tucson’s potable ground water supplies. The mountain drainages flow into tributaries of the Santa Cruz River.

“In our view, there is significant uncertainty as to whether the Corps’ has jurisdiction over the onsite drainages,” Merrin wrote in his letter to Colonel D. Peter Helmlinger, commander of the Corps’ South Pacific Division. “In the event of an adverse final decision on our application, we anticipate that jurisdictional arguments will be a key element of our appeal…”

Federal jurisdiction over washes and other Santa Rita Mountain drainages hasn’t been previously questioned since Rosemont Copper first announced its plans to build the $1.5 billion project a decade ago, the Arizona Daily Star reported on Jan. 16.

Hudbay acquired Rosemont Copper in July 2014. Rosemont’s previous owner, Vancouver, B.C.-based Augusta Resource Corp., announced its intention to seek a Clean Water Act permit from the Corps in 2008 and submitted its permit application in 2011, the Daily Star reported.

Col. Helmlinger stated in a Dec. 28 letter to Merrin that the “Corps current analysis of the permit application” is based on documents submitted by Rosemont’s consultant that accepted the Corps’ authority to issue the permit under a regulatory provision called “preliminary jurisdictional determination”.

Col. Helmlinger wrote Merrin that Hudbay may request an “approved” jurisdictional determination at any time, “including before the final permit decision or during an administrative appeal.”

Such a request, Col. Helmlinger wrote, would require another Corps regulatory investigation that could require a supplemental Environmental Impact Statement and “a new” Clean Water Act certification from state environmental authorities.

The Daily Star reported that federal authority over many desert washes in the Tucson area has been clear since 2008, when the U.S. government declared the Santa Cruz River a legally navigable river even though most of it also runs only during storms.

Under the Corps’ and the U.S. Environmental Protection Agency’s interpretation of court rulings, dry washes that are significant tributaries to a navigable river are legally covered by Clean Water Act rules. That means permits are needed for anyone wishing to significantly alter or otherwise impact the washes, the Daily Star reported

The Army Corps warned Rosemont Copper in 2014, while it was owned by Augusta Resource, that its application for the Section 404 Clean Water Act permit fell short of regulatory standards.

The Corps stated in a Feb. 28, 2014 letter that “it is imperative Rosemont focus on restoration/enhancement of WUS (Waters of the United States) to offset the direct loss of 40 acres of WUS,” Col. Kimberly Colloton, Army Corps District Engineer, stated in the letter to former Rosemont President and CEO Rodney Pace.

“Unfortunately,” Colloton stated, “Rosemont has continued to present mitigation plans which provide more acres of upland and riparian preservation, with some enhancement, than acres of actual restoration/ enhancement of WUS.”

Despite the 2014 warning, Rosemont has not made significant changes to its proposed mitigation plan.

Col. Helmlinger’s Dec. 28 letter states that the Corps’ district office determined that Rosemont’s mitigation plan that calls for proposed reestablishment of riparian areas at Sonoita Creek Ranch, which is outside the Rosemont drainage area, and Davidson Canyon falls short of regulatory requirements.

“The permanent loss of 40.4 acres of water would not be mitigated,” Col. Helmlinger wrote to Merrin.

Col. Helmlinger’s Dec. 28 letter also stated that the Corps determined the mining project would “cause or contribute to” violations of Arizona water quality standards and would have adverse effects on cultural resources and traditional cultural properties important to tribes.

The Corps agreed to meet with Hudbay officials sometime in January to discuss technical issues related to the permit.

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6 Responses to Hudbay warns it may challenge federal authority requiring Clean Water Act permit for its Rosemont copper mine

  1. ALAN JOHNSON says:

    After this convoluted revelation , what is there to say ?

    HUDBAY may be trying to get out of the ROSEMONT PROJECT by provoking the authorities who are responsible for issuing permits to the point where they deny the application as submitted originally by AUGUSTA . This would let HUDBAY off the hook leaving them to write off the project and all costs as a loss . This would not be the first time for a mining company to write off such losses . The shareholders would not be happy but it is better than throwing good money after bad .

  2. thomas stewart says:

    Good Golly Eight Years Of Obama Rope-A-Dope!! Now The US Has A Real President Donald J. Trump Who Will Start Up All Mining From Coal To Copper!! Remember This Product Is In The Ground!! Plus All Mines Are Safe And Sound So Lets Give Hudbay And Rosemont The Clean Water Act Permit. God Bless America.

    • Wayne M says:

      This is the same old BS, Trump or no Trump the Rosemont mine venture is a “No-Go”. I live in the area, enjoy the scenic sights and do NOT want to see a vast pile of dust, debris and disturbed area for the rest of my life. Forget it. We will fight this venture until the cows come home and then some.

  3. chris werkhoven says:

    Finally some common sense at our government. Even Trump knows that most of the profits will be generated in China as that is where most of the copper ore will go to make many products that should not be imported again. Fortunately there are alternatives that have a much lower carbon footprint but corrupted politicians, paid by stakeholders in the mining business, try to prevent this. Nothing new here.
    The past has learned that environmental risks are greatly underestimated and tax payer dollars have to be used to clean up, if possible at all. Fukushima was safe too but there is still no plan to get it clean again for centuries to come. There are plenty of examples in the US where companies just left large polluted areas behind when markets collapsed, apparently with the owners well protected. Therefore no reason to permanently destroy one of the last pristine mountain areas in southern Arizona for a few dollars profit that fill the pockets of a foreign company. Driving along the I19 shows what it means. Is somebody monitoring what people are drinking or using for watering their vegetable gardens in that area?
    Reversing a process that concentrates hazardous heavy metals is virtually impossible and retention basins and pipelines always leak, certainly after the owners abandoned them because profits are down. Mining companies know that but lack the moral and ethical principles to admit. Hopefully Hudbay’s threat is a last act of desperation in a battle in which they have created now more enemies than ever before so that what Alan Johnson described before, comes true. Common sense should prevail after all.

    • Wayne M says:

      Amen. We have better sources for Cu, Mb and the other metals Hudbay wants to sell to China. Forget it Hudbay. Mining this area will produce more threats than profits for your fiscal interests. Leave.

  4. David Simms says:

    This case has NAFTA written all over it. Given that Rosemount, presumably a US company, is having trouble with regulations, why not sell the property to a Canadian company that can invoke the Chapter 11 “lost profits”, investor-state provisions, in order to arm twist its way around the regulations ? So, Rosemount gets paid for doing the preliminary work, probably retaining a healthy proportion of the ownership of the future mine but, without the burden of meeting impossible water quality restrictions. If the regulations don’t get relaxed, then Rosemount shareholders will benefit from any settlement coming from a NAFTA lawsuit. it could be pretty close to a win-win. It may sound unlikely that a (nominally) foreign company can skirt the regulations that would apply to a domestic one but, that’s the way it works. Sometimes, even the threat of a NAFTA suit is enough for the regulators to sweep everything under the carpet. We see this, oftne enough, here in Canada.