The Tohono O’odham Nation is demanding that the U.S. Army Corps of Engineers engage in “government-to-government” consultations with the tribe before deciding whether to issue a crucial Clean Water Act permit needed to construct Toront0-based Hudbay Minerals proposed $1.9 billion Rosemont copper mine.
“The Corps must consult with the Nation regarding its ongoing review of the permit, including all the reasons articulated in the (Corps’) Los Angeles District’s decision recommending denial of the permit,” attorneys for Earthjustice, which is representing the Nation, stated in a detailed 42-page letter.
Consultation would allow the Nation to provide additional legal and scientific support to a July 2016 recommendation by the Corps’ district office to deny the Section 404 Clean Water Act (CWA) permit for the proposed open pit that would be blasted into the northeast slope of the Santa Rita Mountains on the Coronado National Forest southeast of Tucson.
The mine, which could be come the third largest open pit copper mine in the United States, cannot be built without the permit.
The Nation’s Nov. 28 letter was sent to Col. D. Peter Helmlinger, Division Commander of the Corps’ South Pacific Division based in San Francisco, which is reviewing the District’s denial recommendation.
Helmlinger explained the reasons for the District’s negative assessment of Hudbay’s permit application in a Dec. 28, 2016 letter to Patrick Merrin, Hudbay’s then vice president of Hudbay’s Arizona Business Unit.
“The key CWA 404(b)(1) factors identified by the District that support a permit denial are determinations that the proposed Rosemont Mine will cause or contribute to violations of state water quality standards and significant degradation of waters of the United States, including shortfalls in the proposed compensatory mitigation plan,” Helmlinger stated.
The District concluded that Hudbay’s proposed mitigation plan would not offset the adverse impacts of the mile-wide, half-mile deep open pit mine that would dump waste rock and mine tailings on more than 2,500 acres of Coronado National Forest.
In addition, Helmlinger’s letter stated that the District concluded that the mine would be contrary to the public interest because of the damage it would have on “cultural resources and traditional cultural properties important to the tribes.”
The Tohono O’odham Nation says the Corps must now consult with the Nation under the requirements of the National Historic Preservation Act, in part because the U.S. Forest Service failed to fulfill its duties under the Act because it terminated consultation in 2013. Since that date, there have been extensive changes to Hudbay’s mining and mitigation plans.
In addition, the Nation says the Corps has not yet completed a full analysis of the impacts of the Rosemont Mine on waters of the United States. Until the analysis is complete, the “Corps may not issue a permit,” states the letter written by Earthjustice attorneys Heidi McIntosh and Stuart C. Gillespie.
The Corps needs to conduct additional analysis, or publicly disclose any analysis it has conducted, on the “effects of mine-driven groundwater draw down on hydrologically- connected waters of the United States.”
The proposed half-mile deep pit is expected to draw groundwater from surrounding areas into the pit, reducing the amount of groundwater that otherwise would flow into seeps, springs and surface streams including Cienega Creek, which lies within the federally- protected by the Las Cienegas National Conservation Area.
“The Corps must, therefore, prepare a supplemental Environmental Impact Statement (EIS) analyzing the impacts of mine-driven groundwater draw down,” the letter states. “The Corps cannot issue a decision approving the Rosemont Mine until it has complied with the procedural obligations.”
The preparation of a supplemental EIS , including extensive public comment periods, can take years to complete.
In addition to the procedural steps that must be completed, the Nation provides four additional substantive reasons why the CWA permit must be denied including:
* The Los Angeles District determined that the project would contribute to degradation of Arizona Outstanding Waters, which under state law cannot be negatively impacted.
* The proposed mine “fails to include all appropriate and practicable measures to minimize potential harm to aquatic ecosystems.”
* Hudbay has not “clearly demonstrated that Rosemont Mine is the least environmentally damaging practicable alternative.”
* Issuing the 404 permit “would be contrary to the public interest.”
“In conclusion, there are multiple procedural and substantive grounds requiring denial of the 404 permit for the Rosemont Mine,” the Nation’s letter states. “We look forward to discussing these issues with you as part of formal government-to-government consultation.”