Pima County is advocating with federal officials to deny a key permit and other necessary approvals for construction of the proposed Rosemont Mine and is taking legal action to revoke the state’s issuance of a Clean Water Act (CWA) certification for the $1.9 billion project.
At the center of the county’s arguments is that the Arizona Department of Environmental Quality violated state law in 2015 when it issued a CWA Section 401 Water Quality Certification for the Rosemont project. Pima County filed an appeal of ADEQ’s administrative decision to issue the certification on May 5 in Maricopa County Superior Court.
The 401 certification “receives significant weight” in the ongoing federal review of Rosemont’s potential impacts on rare desert wetlands and riparian areas, according to the U.S. Environmental Protection Agency’s Office of Wetlands, Oceans and Watersheds.
The state’s 401 certification is part of the materials being reviewed by U.S. Army Corps of Engineers as it decides whether to issue Rosemont a Clean Water Act Section 404 permit that allows dredging and filling of wetlands.
The Corps has not made a final decision on whether to issue the 404 permit, although its Los Angeles district office recommended last July that Rosemont’s permit application be denied. The mine cannot be built without the 404 permit.
Pima County Administrator Chuck Huckelberry stated in a May 5 letter to the Corps of Engineers and the Region IX office of the U.S. Environmental Protection Agency that the federal government should not issue a 404 permit that is based on a “legally and technically flawed” 401 certification issued by the state.
“Pima County asserts ADEQ violated Arizona law because the conditions included in the Section 401 Water Quality Certification are derived from information (Rosemont’s Surface Water Mitigation Plan) submitted to ADEQ after the close of the public comment period,” Huckelberry’s letter stated.
Huckelberry stated the state’s 401 certification is “fatally flawed” and that “it is not clear” that Rosemont’s mitigation plan will protect Cienega Creek and Davidison Canyon, which are both classified as Arizona Outstanding Waters that cannot be degraded.
“As a consequence, the Section 401 Water Quality Certification issued to Rosemont is both legally and technically questionable,” Huckelberry’s May 5 letter states.
Three days after Huckelberry wrote the Army Corps and EPA, the Coronado National Forest announced it intends to issue a technical approval of the Rosemont Mine in early June when it publishes a Final Record of Decision (ROD) on the project. The ROD does not clear the way for construction, but is an important administrative hurdle for Rosemont’s owners, Toronto-based Hudbay Minerals.
Before the mine can start construction, the Forest Service must also approve a separate Mining Plan of Operations for the project, Heidi Schewel, a Coronado National Forest (CNF) spokeswoman, told the Arizona Daily Star in a May 13 story.
The next day, May 9, Huckelberry sent a letter to CNF Supervisor Kerwin Dewberry stating it was “premature” to issue the Final ROD until after the Army Corps decides on whether to issue the 404 permit and an environmental review of areas impacted by two wildfires that swept through 48,000 acres. The fires impacted portions of the Rosemont project area including the Empire Gulch, Barrel Canyon and Davidson Canyon watersheds.
“Resource agencies should be the opportunity to evaluate the changed conditions prior to concluding the (Environmental Impact Statement) and issuing the ROD,” Huckelberry stated.
Huckelberry stated that Dewberry should know the county is legally challenging the state’s 401 certification and that it is uncertain that Rosemont’s runoff from more than 3,000 acres of waste rock and mine tailings that will be dumped on the Coronado National Forest won’t damage Arizona Outstanding Waters in Cienega Creek and Davidson Canyon.
Huckelberry also stated the county intends to “submit new and important information for your record in relation to Forest’ responsibilities prior to the issuance of the ROD.”