How a legal fight in Maui could shape a mine project in Southeast Alaska

The Chilkat River at sunset. (Photo by Claire Stremple, KHNS – Haines)

Constantine Metal Resources is a Canadian company working towards a mine at the headwaters of the Chilkat River. There’s no mine yet, and the project is controversial downstream in Haines and Klukwan. Some residents fear wastewater from the project could hurt salmon runs.

Constantine’s next step in its mineral exploration is to blast a mile-long tunnel into the side of a mountain at the mouth of the Saksaia Glacier.

“Mining these days is more about water sometimes than it is about rocks,” said Liz Cornejo, Constantine’s Vice President of External Affairs.

Water is the reason her company’s tunnel project has stalled this year. The state’s Department of Natural Resources sent their wastewater discharge permit back to committee in September after conservation groups contested it.

“And one of the things they’re considering is this case in Hawai’i, that may or may not even apply to our case,” Cornejo said.

Conservation law firm Earthjustice is calling the Supreme Court case “County of Maui v. Hawai’i Wildlife Fund” the clean water case of the century. But what does a legal fight in Maui have to do with a mine project in Southeast Alaska?

Maui County has been discharging treated sewage through injection wells into groundwater since the 1980s. That groundwater makes it to the nearby ocean, impacting a coral reef. Conservation groups sued the county in 2012. The Ninth Circuit Court of Appeals ruled that even though Maui county puts their sewage in groundwater, they’re responsible for where it ends up, which in this case was the ocean. That means the county needs to trade their state permits for stricter federal permits under the Clean Water Act.

Maui County appealed. Now the case is sitting before the Supreme Court. They have to decide how far the Clean Water Act goes.

Wastewater from Constantine’s tunnel may do the same thing as Maui’s sewage. Constantine will discharge wastewater from the tunnel into groundwater, but it could end up in surface water. Namely tributaries to the Chilkat River, a major salmon source for the region.

Gershon Cohen is the director of Alaska Clean Water Advocacy. He wrote his doctoral thesis on the federal Clean Water Act. He’s open about his point of view; he doesn’t want Constantine to develop a mine in the Chilkat Valley.

“Their goal is to discharge hundreds of thousands of gallons  every day into gravel beds literally feet from creeks and only a very short distance from the Klehini River. And there’s no question and the state’s Department of Environmental Conservation, or DEC, has not denied that that discharge is going to make its way into surface waters,” he said.

He said DEC should have asked for a surface water permit to begin with.

DEC declined an interview, but Division of Water Director Amber LeBlanc wrote in an email that she sent the permit back to committee so the division could gather more information. She’s not sure if the Maui case will apply to Constantine’s permit yet.

The agency asked Constantine to complete a dye study, to see if water from its discharge sites will move to nearby surface waters. That study is underway.

Constantine’s state permit is still valid while under review. The agency did not set a deadline.

Cornejo said Constantine and its partner company DOWA Metals & Mining Alaska Ltd. is currently deciding if it will begin construction in 2020.

“The permit is issued is still perfectly valid and we could move forward with it anytime. But right now, we’ve got winter in front of us, and we’re not moving forward with construction. And we’re also waiting to see what DEC might decide,” she said.

“And if it turns out we need a different one, it’s not a showstopper,” Cornejo said.

The Supreme Court heard the Maui case in Washington DC in November. They’re expected to decide how far the Clean Water Act goes next year.