The U.S. Army Corps of Engineers confirmed Monday that it intends to issue a crucial permit authorizing construction of the proposed Rosemont Mine in the Santa Rita Mountains southeast of Tucson.
In addition, the U.S. Environmental Protection Agency’s regional office, which had been regularly blasting the $2 billion project since 2012, says it will not send the mine issue to its Washington, D.C., office for additional review. That turnaround by the EPA is a huge boost for the mine project, because an EPA move to elevate it could have delayed the already-delayed project for months more and maybe led to an EPA veto.
Word of the Corps’ intent to OK the project and the EPA’s withdrawal from the case first surfaced in an email sent Thursday, Feb. 28, by a top EPA official to an attorney for the Tohono O’Odham Nation and two other Arizona tribes. The email came from Michael Stoker, administrator for the EPA’s San Francisco regional office that governs Arizona issues, and offered no reason for the agency’s decision.
At stake is a proposed Clean Water Act permit for the mine allowing it to dredge and fill about 40 acres of washes. It’s the last permit required for the mine to start construction and one that’s likely to be argued for some time in court due to lawsuits if it’s issued.
The mine would be built by Toronto-based Hudbay Minerals Inc. and employ more than 400 people for around 20 years in an area about 30 miles southeast of Tucson.
The tribal attorney, Stu Gillespie of the Earthjustice environmental law firm, wrote Stoker back Friday, requesting “meaningful, government to government consultation with you regarding this monumental decision.”
Such a consultation is required by federal law and EPA policy, said Gillespie in his email. His firm also represents the Pascua-Yaqui and Hopi tribes. All three have opposed the mine out of concern it would damage areas they consider ancestral homelands.
Friday night, the EPA also told the Arizona Daily Star in an email that it isn’t elevating the Rosemont issue to Washington, D.C. The agency’s action met a deadline set by the Corps to decide on that question. Normally, permit requests are reviewed by both EPA and the Corps, with either agency able to elevate cases to Washington when disagreements occur, the EPA said.
On Feb. 14, the EPA received the Corps’ draft permit for the proposed mine, the EPA said in a statement.
Monday, the Corps said it has provided the EPA a notice of intent to issue the Rosemont permit, although the permit isn’t final until its officials sign it, likely to come late this week or early next week.
The Corps won’t have any comment on the permit issues until a final decision is reached, said Mike Petersen, a spokesman for the agency’s South Pacific Division, which is handling the case.
In his email to the EPA’s Stoker, attorney Gillespie said the agency hasn’t consulted with tribal leaders about its decision not to elevate the Rosemont issue and called Stoker’s email “too little, too late.”
“It did not provide tribal leaders with an opportunity to respond, let alone engage in consultation. Indeed, your email suggests that you had made your decision, before even reaching out to the tribes,” Gillespie said.
He requested Stoker seek an extension of EPA’s deadline for reviewing the Rosemont permit “so that you can meaningfully consult with tribal leaders regarding the significant impacts of the proposed Rosemont mine on aquatic, cultural, religious, spiritual, and historic properties.”
On Saturday, Stoker wrote Gillespie back, saying, “I appreciate you reaching out and expressing your thoughts on behalf of the Tohono O’odham Nation.” He said he’s asked his regional counsel, Sylvia Quast, to respond to Gillespie’s email.
Tuesday, Quast sent Gillespie an email, saying that EPA doesn't believe additional consultations are required.
For one, the U.S. Forest Service initiated consultation on Rosemont 13 years ago with twelve tribes, including the three Gillespie represents, even though the proposed project is not on or adjacent to designated Tribal lands, Quast said.
Also, "since that time, there have been meetings, including field trips, formal consultation meetings and presentations to tribal councils and other tribal groups, on over 25 occasions with various tribes. EPA and the Corps participated in at least some of those meetings, along with one or more of your clients, who expressed concerns about a variety of issues," Quast said.
"We also understand that the Corps met with your clients and their attorneys last August and September, including at the proposed mine site, to hear their perspectives and concerns," she said.
Gillespie, however, said Tuesday that despite the past meetings, he believes it's now important for tribal leaders to meet with EPA, since that agency has taken a different view of Rosemont impacts than has the Corps and other agencies. His hope was that the tribes could persuade EPA officials to reverse the decision not to elevate this case, Gillespie said.
For instance, "from what I can tell," the Corps likely won't analyze the effects of Rosemont's lowering of the water table to create the mine's open pit on seeps, springs, and on creeks and washes.
"That difference in the scope of analysis between the agencies has huge implications not just under the Clean Water Act but for cultural resources," he said.
EPA regional officials first identified Rosemont in January 2012 as a project with serious enough environmental impacts to make it a candidate for elevating to its main office for further review.
Since then, EPA regional officials have written seven other lengthy letters and memos warning the mine will cause serious impacts. They include drawing down the aquifer, drying up wells, polluting surface waters and reducing water flows from washes at the mine site into neighboring Davidson Canyon and Cienega Creek. The criticisms have come during both the Obama and Trump administrations, most recently in memos from November 2017.
The EPA has regularly singled out these creeks for special attention, calling them “Aquatic Resources of National Importance.” For a proposed project to be elevated to national attention, the agency must determine that it “may result in substantial and unacceptable impacts” to such water bodies, the EPA’s website said.
In return, officials of Hudbay Minerals, Rosemont’s current proponent, and its predecessor Augusta Resource Corp., have fired back numerous letters and memos of their own, criticizing the EPA’s reasoning, the accuracy of its comments and its science. Hudbay has said the EPA has dramatically overstated the mine’s potential impacts and relied on speculative forecasts to make a case that the mine’s impacts would be severe.
Hudbay said the mine is unlikely to have significant impacts to aquatic resources and those that do occur “will be distant in time” and “quite small if they occur at all.”