Arizona environmental regulators are taking steps to take control of a crucial federal permitting process in what appears to be an attempt to circumvent the U.S. Army Corps of Engineers ongoing review of Hudbay Mineral’s Clean Water Act permit application for its proposed Rosemont open-pit copper mine. Beyond Rosemont, state control of this program could have far-reaching implications to many other projects that could impact Arizona’s water resource.
In an email to stakeholders, the Arizona Department of Environmental Quality’s Water Quality Division is holding a special meeting on taking over issuing federal Clean Water Act permits at 1 p.m., Monday, Dec. 4, at the agency’s headquarters at 1110 W. Washington St., Phoenix in room 250. The public may also attend the meeting by calling 240-454-0879 with access code 282-719-829.
“The meeting will discuss state assumption of the Clean Water Act Section 404 dredge and fill program,” the ADEQ stated in an email.
The Army Corps is currently reviewing Hudbay’s 404 permit application. Hudbay needs the permit because its proposed mine would destroy federal desert waterways. The company must provide adequate mitigation from the damage it will cause in order for the permit to be legally issued.
The Corps’ Los Angeles district office recommended the permit be denied in July 2016. The Corps’ regional office is currently reviewing Hudbay’s permit application. The Corps has long expressed serious concerns about the mile-wide, half-mile deep mine that would dump waste rock and tailings on more than 2,500 acres of Coronado National Forest stating that Hudbay’s mitigation plan was inadequate.
In 2016, Pima County formally requested that the Army Corps deny the 404 permit. The U.S. Environmental Protection Agency has also issued letters to the Army Corps stating that the mine project should not move forward because of the lack of adequate mitigation. EPA has veto authority over Army Corp 404 permits and would retain the same authority if the state assumes control of the 404 program.
The 404 permit is the last major permit Hudbay needs before it could begin construction on its proposed $1.9 billion mine that would be built in the Santa Rita Mountains on the Coronado National Forest 30 miles south of Tucson. The $1.9 billion mine would produce about 240 million pounds of copper a year and employ about 400 permanent workers.
Arizona Gov. Doug Ducey has been a strong supporter of the project. The ADEQ has repeatedly issued air and water pollution permits disregarding opposition from Pima County, Arizona Game & Fish Department and conservation groups opposed to the massive mine that would be the third largest open pit copper mine in the United States.
ADEQ certified that the mine project would meet state and federal clean water standards before the Army Corps has made its determination. Pima County is challenging ADEQ’s Clean Water Act Section 401 certification in Maricopa County Superior Court. The EPA and Arizona Game & Fish also opposed the 401 certification.
The ADEQ meeting agenda includes:
- Provide an overview of the 404 program and its applicability in Arizona;
- Discuss ADEQ’s intention in pursuing assumption of the program, which is currently administered by the U.S. Army Corps of Engineers with oversight by the U.S. Environmental Protection Agency;
- Discuss pros and cons of state assumption; and
- Identify what you, as ADEQ customers and stakeholders, value most in terms of state administered 404 program and delivery of 404-related products and services.
Two states, Michigan and New Jersey, have assumed administration of the federal 404 permit program, according to the U.S. EPA.
The EPA says states typically have not sought to assume 404 responsibilities because of a lack of funding, lack of clarity on which waters are assumed under a state or tribes program, concerns regarding federal requirements and oversight, availability of alternative mechanisms for state/tribal wetlands protection, and the controversial nature of regulation of wetlands and other aquatic resources.
To assume the Section 404 program, states or tribes need to develop a wetlands permit program consistent with the requirements of the Clean Water Act and regulation at 40 CFR 233 and submit to the EPA an application to assume the program.
Even for states or tribes with an existing wetlands regulatory program, this process may require the passage of new state or tribal legislation. To be eligible to assume the federal program, a state or tribe’s program must:
have an equivalent scope of jurisdiction,
regulate at least the same activities,
provide for sufficient public participation,
ensure compliance with the Section 404(b)(l) guidelines, which provide environmental criteria for permit decisions, and
have adequate enforcement authority.