Their request comes in light of a late April decision handed down by the U.S. Supreme Court in the case of County of Maui v. Hawaii Wildlife Fund.
That decision recognizes that polluters cannot avoid the Clean Water Act’s permit requirements just by pumping pollution into the ground where doing so is the functional equivalent of discharging that pollution directly into streams, lakes and oceans, the group said.
In the Chilkat Valley of Southeast Alaska this means that DEC must reconsider its decision not to require a discharge permit for wastewater from Constantine Metals’ exploration, which the company plans to channel into permeable ground just a short distance upgradient from Waterfall Creek, they said.
Alaska Department of Environmental Conservation officials said on Tuesday, May 5, that they are conducting an informal review of the Supreme Court decision, but there is no timeline requirement on whether they will decide whether to require a different permit than the one already approved.
Instead of a discharge permit, Constantine applied for a waste management permit, one that would not control pollutant discharges to surface waters. DEC initially endorsed Constantine’s approach, granting the waste management permit in July 2019 over the vigorous objections of several conservation and tribal entities. Then DEC agreed to reconsider that decision once the Supreme Court decided the Maui case, which was pending at the time, but refused to suspend the permit during the interim period.
Veteran Southeast Alaska gillnetter Don “J.R.” Churchill of Haines, speaking for the Haines Fishermen’s Alliance, hopes the DEC will opt for new permit requirements.
“If there’s just one mistake up there, that could have devastating effects on the spawning grounds in the Chilkat River,” Churchill said. “The Chilkat River produces all five species of salmon and not all rivers do that. It is the second largest coho stream in Southeast Alaska, which would have a huge effect on local trollers.”
News of the Supreme Court decision of April 23 buoyed the spirits of the mine opponents.
Constantine should never have applied for a groundwater discharge permit for the release of hundreds of thousands of gallons a day of wastewater into a gravel bed so close to several surface waters, including Hangover, Waterfall and Glacier creeks, said Gerson Cohen, project director of the Alaska Clean Water Advocacy, in Haines.
“The Ninth Circuit had already ruled a much more rigorous surface water discharge permit would be required,” said Cohen, an outspoken advocate for river and marine ecosystem protection who holds a master’s degree in immunology/molecular genetics.
Digging the exploration tunnel itself would create a discharge, which would have sediments and explosive residues and hydrocarbons, a massive amount of contaminated wastewater, just a couple of miles upstream from the second largest coho salmon producer in Southeast Alaska.
Because DEC gave Constantine a permit that does not protect the public’s welfare, their fundamental mandate, and it serves no benefit to the applicant, they have to go back to square one, Cohen said.