Supreme Court Ruling could delay Palmer Project
April 30, 2020
A recent U.S. Supreme Court ruling could have a significant impact on plans for Constantine’s Palmer Project.
The court case, County of Maui v. Hawaii Wildlife Fund, hinged on the question of whether the Clean Water Act, a 1972 law regulating pollution levels in surface waters, applies to waste discharged into groundwater. A wastewater treatment plant in Maui was taken to court after pollutants from its wastewater disposal wells were shown to be making their way to the ocean, roughly a half-mile away.
On Thursday, April 23, the Supreme Court ruled 6-3 that the Clean Water Act applies not only to direct discharge into surface waters but also in some instances where waste is discharged into groundwater.
“We conclude that (a Clean Water Act permit is required) if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters,” Justice Stephen Breyer wrote. Breyer said the law should prevent a polluter from avoiding permit requirements by simply moving the point of discharge “perhaps only a few yards, so that the pollution must travel through at least some groundwater before reaching the sea,” but it should not apply to “the 100-year migration of pollutants through 250 miles of groundwater to a river.”
The Supreme Court assigned the 9th U.S. Circuit Court of Appeals in San Francisco the task of determining what a “functional equivalent” looks like in actual practice based on criteria including time, distance and material through which pollutants travel. The San Francisco court is the same court that ruled last fall in favor of the Hawaii Wildlife Fund, before the County of Maui appealed to the Supreme Court to overturn the decision.
For Haines, the ruling raises the question of whether the Palmer Project can move forward under its current waste management permit, which covers groundwater discharge, or whether the company will need to seek approval for surface water discharge, a more involved process that requires both state and federal approval and comes with more stringent water treatment requirements.
Constantine received its original groundwater discharge permit from the Alaska Department of Environmental Conservation (DEC) last year. The permit was required before the company could begin construction of a one-mile tunnel into the mountainside for year-round drilling and exploration. Under the plan, Constantine would store wastewater from the tunnel in settling ponds, then eventually pump it underground.
Last fall, responding to pushback from local environmental groups who argued that the company needed approval for surface water discharge because of the waste disposal site’s proximity to nearby creeks, DEC announced that further review was necessary to determine what type of wastewater treatment permit Constantine would require. In the meantime, DEC said the company could continue to operate under its existing groundwater discharge permit. DEC indicated a final permit decision would depend, in part, on the Supreme Court’s ruling in the Maui case.
Project director for Haines-based environmental organization Alaska Clean Water Advocacy, Gershon Cohen said he thinks that, based on the Supreme Court’s ruling, the Palmer Project will need a surface water discharge permit before it can move forward.
“Constantine should never have applied for a groundwater discharge permit for the release… of wastewater into a gravel bed so close to several surface waters--Hangover, Waterfall and Glacier Creeks,” Cohen said.
Cohen said he thinks both Constantine and DEC should have recognized that the project would need to meet the standards of the Clean Water Act last year when the 9th Circuit issued its ruling on the Maui case.
DEC Wastewater Discharge Authorization Program manager Gene McCabe said it is too soon to know how the Supreme Court ruling will impact DEC’s review of Constantine’s permit. He said the department “is analyzing (the opinion) with interest,” but he declined to speculate on potential outcomes.
It is not yet known what effect, if any, the ruling will have on the Palmer Project, Constantine vice president Liz Cornejo said. “We are reviewing the recent Supreme Court decision in the context of our exploration permits and the tracer-dye hydrology study that is ongoing.”
Constantine is in the process of conducting a dye study to test connectivity between groundwater at the proposed waste disposal site and nearby surface waters. Results of the study were delayed after the company announced in March that it would conduct another round of testing at the recommendation of its project consultant.
McCabe said DEC will use the dye study’s results to inform its decision about the permit. He said the department hasn’t received any updates about the study since Constantine’s announcement about a new phase of testing.
In an interview in March, Constantine vice president Liz Cornejo said the company was still working on plans for the summer. At the time, she said the plans would not include construction of the tunnel or its wastewater disposal system.
On Tuesday, Cornejo said the company is still monitoring the COVID-19 situation and evaluating its plans. She said onsite work will likely be reduced this summer.