While the U.S. Forest Service says it can't legally say "no" to the proposed Rosemont Mine, another federal agency says it can.
The U.S. Army Corps of Engineers, which must act to grant or deny a permit for the mine under the federal Clean Water Act, says a permit denial could stop the project proposed on private and public land in the Santa Ritas southeast of Tucson.
Rosemont Copper hasn't yet filed a formal permit application with the corps. Agency officials have no position on how they'll act on that application.
But the corps says it can say "no" if it determines that the project isn't in the public interest and isn't the least damaging, "practicable" alternative. That's a legal term essentially meaning a project that can be feasibly done at a reasonable cost.
Under the Clean Water Act, Rosemont Copper must obtain a permit from the corps to build diversion structures to reroute water now running in washes around various proposed mine facilities, including its open pit. Such permits are typically required for placement or discharge of fill material into rivers, streams, washes and adjacent wetlands that fall under the corps' legal jurisdiction.
Five law professors around the country, including three with experience on Clean Water Act issues, and an attorney for the property-rights-oriented Pacific Legal Foundation agreed that the Corps of Engineers can legally deny a permit for a mine on federal land.
The Forest Service has said several times since 2008 that it cannot say "no" to a mine because of the 1872 Mining Law and other federal laws and regulations that support the right of companies to mine federal land.
But that position doesn't remove Rosemont's obligation to meet the Clean Water Act and other federal laws, said the law professors, who all specialize in natural-resource issues. They include Jan Laitos of the University of Denver, Jonathan Adler of Case Western University in Ohio, Royal Gardner of Stetson University in Florida and Mark Squillace of the University of Colorado.
"The fact that someone has a right to mine does not mean they have a right to discharge," said the fifth expert, Patrick Parenteau, a Vermont Law School professor and former attorney for the Environmental Protection Agency and the National Wildlife Federation who has done extensive Clean Water Act-related litigation.
Commonly known as 404 permits, named after Section 404 of the Clean Water Act, these permits are sought regularly from the corps for projects such as subdivisions, shopping centers, roads and bridges that cause discharge of fill material into rivers, washes and wetlands.
About 101 acres of washes in the area of the Rosemont Mine project are considered to fall under the corps' jurisdiction, an agency official said. They include Barrel Canyon, Wasp Canyon, McCleary Canyon, Scholefield Canyon and Gunnery Range Wash.
Barrel Canyon takes stormwater runoff from the other canyons, then flows into Davidson Canyon - a prized riparian area south of Interstate 10 that contains a Pima County preserve. About 10 miles north of Barrel Canyon, Davidson flows into Cienega Creek - home of a second county preserve.
Placement of fill material into a wash can involve a wide variety of activities, said Marjorie Blaine, a senior regulatory project manager in the corps' Tucson office.
"It might be mass grading a watercourse in order to level the ground for a leach pad or waste-rock facility," said Blaine, adding that that is just a general example.
To do that, the company would have to build a channel to divert water flows around the leach pad or waste-rock area, she said.
The mine can't go forward without a 404 permit because watercourses that are under the corps' jurisdiction lie within the open-pit site and in the area of its leach pad and tailings facility, she said.
If the company could revise its project to avoid those areas, Rosemont could go forward without that permit, Blaine said.
In a statement, Rosemont Copper President and CEO Rod Pace said company officials anticipate the corps' timely approval of its permit, "and we believe the Rosemont Copper project will set new standards for the responsible development of mineral resources."
More than 300 studies and reports have been conducted for the company to ensure its plans will meet all requirements, he said.
"The Rosemont project has been designed with the latest technology to minimize the footprint of the mine, restore the rock storage areas to similar contours … revegetate with native plants, reduce impacts to important historical and cultural sites and recycle and recharge water," Pace said.
The corps has approved more than 90 percent of the tens of thousands of permit applications it has received nationally in recent years, agency records show. But the corps commonly imposes conditions on a project to try to reduce its environmental impacts.
Rosemont, like other applicants, will be required to avoid discharges of fill material to the maximum extent possible, and minimize such discharges when impossible to avoid them, Blaine said.
AT A GLANCE
Factors the U.S. Army Corps of Engineers must consider under federal rules regarding Rosemont's Clean Water Act permit include:
• It must decide if issuing the permit would be in the public interest. That requires balancing costs and benefits, based on many factors. They include conservation, economics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, water supply and conservation, considerations of property ownership, water quality and many other issues.
• The agency must determine if the proposed project is the least environmentally damaging alternative that can be carried out when cost, logistics and technology are considered. Legally, the agency must choose a "practicable" alternative that is reasonable in terms of a project's overall scope and cost.
• The corps must consider "direct, indirect and cumulative" effects of Rosemont's activities on federally regulated washes.
• The company must take measures to offset the effects of what is considered to be the least environmentally damaging alternative.
Contact reporter Tony Davis at firstname.lastname@example.org or 806-7746.