The U.S. Army Corps of Engineers has revoked its four-year-old Clean Water Act permit for the proposed Rosemont Mine.
The action could have ramifications for copper mining in the Santa Rita Mountains southeast of Tucson, but the legal authority is unclear.
Most immediately, the Corps’ decision last week means Hudbay Minerals Inc. no longer has a formal federal permit authorizing it to discharge fill through clearing, grubbing and grading activities on roughly 48 acres of washes on the Rosemont Mine site. That area includes the company’s planned open pit on the mountain range’s east slope, facing the Sonoita highway, and the utility corridor on which Hudbay would build water and electric power lines from the Sahuarita area, west of the mountain range, to the mine site.
But whether that decision stops Hudbay from ever grading in those areas remains legally unclear. That’s because the Corps previously ruled in 2021 — and reaffirmed last year — that it lacks formal jurisdiction over those washes because it determined they don’t qualify as “Waters of the U.S.” Those are washes that merit federal regulation and protection under the same Clean Water Act under which the permit was previously issued.
Hudbay said in response to the new decision that it intends to grade in the permit areas because it believes they don’t contain any federally regulated washes. In a sense, it had requested the permit revocation almost a year ago, by surrendering the permit -- an action the Corps interpreted as a request to have the permit revoked.
Also, it would be doing any future grading for its currently planned Copper World project, which it says is a separate project from Rosemont. Copper World would occupy a much larger area than the Rosemont Mine although the Copper World project includes property on which Rosemont had also planned to grade.
Mine opponents said Hudbay is “playing with fire” legally if it does so, because they consider the Corps’ 2021 decision legally invalid and have asked the Corps to reassess it.
Corps doesn’t refer to discrepancy
The new Corps decision acknowledged the agency’s past determination of no jurisdiction but made no reference as to how that could affect its handling of permit issues themselves.
While that decision was based on Trump administration rules that were later overturned by a federal judge in Tucson, the Corps has said its 2021 decision abandoning jurisdiction stays valid for five years.
Hudbay officials have repeatedly said they believe the Corps now lacks jurisdiction over the washes in question under the permit, that the permit is no longer valid and that they see no legal impediments to grading. Besides citing the Corps decisions on jurisdiction, Hudbay also cited the company’s action almost a year ago to surrender the permit — an action that the Corps has interpreted as a request to revoke it.
The company has been grading and clearing land elsewhere on the Santa Ritas’ west slope, on its private land, in activities documented in photographs taken by mine opponents that show barren areas that were heavily vegetated before.
Hudbay owns 4,500 acres on both sides of the Santa Ritas and says it intends to build the much larger Copper World project on those acres, including the east slope land that was historically part of its Rosemont proposal.
In a statement Monday, Hudbay told the Star the Corps’ decision “has no impact on the planned development of the Copper World Complex,” the company’s name for the site it formerly called Rosemont and for another area, on the west slope of the Santa Ritas, where it now plans to build open pit mines.
Its officials previously told the Corps in letters that they wouldn’t immediately start grading in the permit areas.
Hudbay received a “stop work” order from the Corps in mid-January to not grade in the permit area. In late January, company vice president Javier del Rio wrote the Corps that no grading there was planned until Feb. 27 at the earliest. Then, at a March 15 meeting between Hudbay officials and Corps officials, Hudbay said it would wait until the Corps finished work towards a decision on revoking the permit before beginning grading, says the Corps’ new decision revoking the permit.
But even before then, from August through December 2022, “our work did not include filling these washes,” Hudbay said.
Work on site ‘will continue’
If there are no jurisdictional waters present, then no permit is required under the Clean Water Act and Hudbay can perform work in those areas as necessary, the company said.
Work on the site, including in areas previously covered by the permit, “will continue based on the project timeline for the Copper World project,” Hudbay said in its statement. The statement didn’t say when work would start in the permit areas. In other areas, clearing and grading work to prepare the Copper World Complex site, including the construction of roads and other facilities, is continuing, Hudbay said.
“As work continues on the Copper World Complex, we remain committed to protecting water resources in and around the project area, which includes being a net neutral water user and a zero-discharge facility,” Hudbay said.
Before Copper World can be built and begin mining, it first needs an aquifer protection permit and an air quality permit from the Arizona Department of Environmental Quality.
But Stu Gillespie, an attorney for three tribes including two in the Tucson area that have fought the mine project, said the latest decision still is troubling for Hudbay because it says the mining company now can’t grade any federally regulated washes on the Rosemont site without having a Clean Water Act permit.
Gillespie noted that the utility corridor for a future road that will bring water and electric power service to Copper World is also covered by the just-revoked Rosemont permit. That means Copper World itself can’t be built without the company getting a Clean Water Act permit, he said.
Asked about the Corps’ 2021 decision to relinquish jurisdiction over the Rosemont site, Gillespie said the tribes regard that decision as invalid and have asked the Corps to revisit it. They have provided the Corps what they say is new information justifying that, including a detailed biological analysis laying out reasons why the washes on the mine site merit federal regulation..
“Hudbay is playing with fire. So, yes, it got what it asked for, and that only increases its legal liability as it is now proceeding without any federal permits. The Corps also sent the company a clear warning, repeatedly stating that it ‘does not have authorization to discharge dredged or fill material into waters of the U.S.,’” Gillespie said.
The permit had been suspended by the Corps since August 2019, after a federal judge overturned a separate U.S. Forest Service approval of the mine proposal. District Judge James Soto stopped Hudbay from dumping mine waste rock and tailings on 2,447 acres of national forest on the Santa Ritas’ east slope. Since then, the same judge also invalidated another approval of the mine, by the U.S. Fish and Wildlife Service.
Corps official’s reason for action
Those decisions and the permit suspension were among the factors that a top Corps official, Brigadier General Antoinette Gant, cited in her decision last week to revoke the permit.
First, the Rosemont project isn’t in compliance with the National Environmental Policy Act and the federal Endangered Species Act. Second, “there is no estimated time frame for if or when” the mine will be brought into compliance with those laws, she wrote.
Third, Hudbay itself has requested that the permit be revoked, by surrendering it, she wrote. Finally, her own review determined that revocation is in the public interest, wrote Gant, commanding officer of the Corps’ San Francisco-based South Pacific Division.
In her decision, Gant noted the Corps has reviewed drone photographs submitted by the tribes that they said show the company had been grading in various washes in the utility corridor, which they said was in violation of the suspended permit. The Corps determined all four locations were either outside areas that were or had been under the Corps’ jurisdiction or were “very likely” outside the areas authorized for construction work by the original 2019 federal permit.
Photos of all four areas in question have been provided “for evaluation” to the U.S. Environmental Protection Agency, which the Corps has said is conducting a law enforcement investigation of Hudbay’s ongoing grading.
EPA previously declined to say if it is conducting an enforcement investigation there. On Monday, the agency said through a spokesman, “EPA has not made any determinations related to jurisdiction in the washes referred to EPA by the Army Corps. EPA is still reviewing information submitted and determining appropriate next steps.”
A longtime academic expert on Clean Water Act issues found the Corps’ actions on the Hudbay matter confusing and befuddling.
“Honestly, it’s a new one for me. They revoked the permit, but that has nothing to do with whether they have jurisdiction over these washes or not,” said Patrick Parenteau, a retired environmental law professor at Vermont Law School. He has closely tracked federal agencies’ handling of Clean Water Act issues since 1975 and also has administered Clean Water Act issues for EPA and litigated cases involving the act for environmentalists. “I’ve never seen anything like this,” he said.
“I see the chess game going on. I don’t know why they are dancing around like this,” Parenteau said of the Corps’ actions regarding the mine.
“We used to say when I was in D.C. regarding cases like this, ‘The Corps has put the turd in EPA’s pocket’.”
This flyover shows the Santa Rita Mountains’ west slope, where Hudbay Minerals has been grading and land-clearing since April 2022 for its planned Copper World Mining Project. Video courtesy of Center for Biological Diversity.
