February 6, 2013

PLF joins legal fight over Eagle Mine

By Brian T. Hodges Senior Attorney

The first new copper and nickel mine to open in Michigan’s Upper Peninsula in decades should be up and running next year.  After passing intensive environmental review, Eagle Mine obtained all state approvals necessary to begin operations.  It will soon employ hundreds of workers and will be an economic bright spot in a part of the country recently plagued by a poor economy.

There is one problem though.  A wildlife group is suing to block the mine from opening because the group contends that the mine needs to obtain a Clean Water Act Section 404 “dredge and fill” permit, among other federal approvals.  The case is now on appeal to the Sixth Circuit.

PLF filed an amicus brief this week in support of the mine.  Our brief discusses the applicability of Section 404, which provides that anyone who discharges dredged or fill material into waters of the United States must first obtain a permit from the U.S. Army Corps of Engineers.  As the Supreme Court highlighted in Rapanos v. United States, individual Section 404 permits often cost hundreds of thousands of dollars and take years to secure.

In the case of Eagle Mine, neither the mine nor the Corps believes that Section 404 applies, for the obvious reason that the mine will not discharge anything into a nearby river or wetlands.  All of the excavation activities will take place underground, far below any body of water, which means that no dredged or fill material will be deposited into waters subject to Clean Water Act jurisdiction.  Our brief also points out that Section 404 authority does not extend to groundwater because groundwater at the mine will not function as a medium through which pollutants will be introduced to surface waters.  In short, the plaintiffs want the court to order Eagle Mine to obtain a permit that it, by law, does not need.

Overreaching application of the Clean Water Act presents a significant threat to property rights and federalism.  The Eagle Mine case is another example of why courts should carefully police the limits of the Clean Water Act to ensure that it is not abused as a tool to stop economic development that will benefit individuals, states, and the greater economy.

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