The Supreme Court heard oral arguments (transcript) yesterday in a case involving the Kensington Mine between Juneau and Haines Alaska, which would like to discharge mine tailings into Lower Slate Lake effectively killing the lake. This would appear to be in violation of the Clean Water Act, but apparently if you choose your words carefully and redefine a couple of key terms, eviscerating a pristine lake in a National Forest doesn't run afoul of the Clean Water Act at all.

The mine looked at the discharges from this project which traditionally have been regulated by the EPA and made a stunning observation: if you put enough of this stuff in a body of water, it has the effect of filling up that body of water, therefore we will call it fill instead of waste which is regulated under a different permitting regime led by the Army Corp of Engineers instead of the EPA. It is a legal sleight of hand that undermines the Clean Water Act.

As one might expect, Coeur Alaska, which operates the mine, has been heavily working the PR angle. From their website:

“Tailings” defined:
The material left after gold recovery is called tailings. Simply put, the Kensington tailings are sand-like material that are generally inert and contain less metal content than the native lake sediments where they will be placed. The Kensington tailings are very similar to the sands found at Sandy Beach in Juneau.

This is an interesting contrast to the description that emerged from the Supreme Court arguments:

[Gen. Gregory G. Garre is the Solicitor General for the Department of Justice arguing on behalf of federal respondents, in support of the mine. Thomas S. Waldo is a lawyer working with Earthjustice]

JUSTICE SOUTER: You keep saying they are rigorous. My understanding is -- and I didn't think it was seriously disputed here -- is that during the period in which the deposits are going to be made, the natural life of this water body is going to be destroyed.

GENERAL GARRE: That's true.

From Kensington Mine:

Lower Slate Lake: … At the end of mining, the tailings area will be reclaimed into a nearly 60-acre lake with improved productivity and aquatic habitat, as determined through the Final Supplemental Environmental Impact Statement prepared by the U.S. Forest Service. After mining the reclaimed lake will be restocked with wild native fish.

Again from Supreme Court arguments:

MR. WALDO: Of the slurry. That's right. And -- now I want to talk about this allegation that it's like dumping wet sand in the lake. That's not true at all. They tested the tailings sediment from this discharge with two organisms, and with one of them, it killed 95 percent of the organisms in the test, which is way over the top for EPA's toxicity threshold. In the other organism they had, it -- the organism survived, but their reproduction rate was significantly reduced, also meeting the toxicity test standards that EPA establishes. So this --

CHIEF JUSTICE ROBERTS: Just to follow up, that's the same point, though, that Justice Alito made: You're testing that right as it comes out, not as it's diluted in the lake.

MR. WALDO: No. No, Your Honor, that's not right. That's what the solids -- that's the affect of the solids, and that's why, as a result of that, they established this rule that --

CHIEF JUSTICE ROBERTS: I'm sorry, I didn't understand you. I thought you said that the toxicity in the slurry was tested and killed 99 or whatever percent of these invertebrates.

MR. WALDO: They took that slurry, they let the solids settle down in the bottom, and then they tested the solids for what effect it would have on some fresh water organisms, because they were trying to determine whether the lake would be able to recover from depositing all these solids into the lake. And they found that it had a very high toxicity level. And so what they did to try to remedy that was require depositing native vegetation on the top of all of that, after the mine closes. And they are hoping that that will have the effect of letting the lake recover. But EPA concluded that it will take decades, if ever, before the lake can recover from that.

And since it's the Supreme Court of the United States, we can't leave this post without allowing for a little comic relief:

CHIEF JUSTICE ROBERTS: Is there any aquatic life in this lake other than a thousand fish?

MR. WALDO: Well, sure. There's microinvertebrae and --

CHIEF JUSTICE ROBERTS: Microinvertebrae?

MR. WALDO: I mean, all sorts of the things that fish feed on. Plant life and animal life, and all that stuff.

JUSTICE SCALIA: Plankton and stuff.

MR. WALDO: Yes. Whatever…