The New Gold Rush: Mine Tailings in Southeast Alaska and Perversion of the Clean Water Act

Part I of this Note provides a basic explanation of the mine tailings problem. Part II of this Note discusses the evolution of the agencies’ tailings decision and the statutory and regulatory context in which it occurred. Part III outlines briefly the actual decision, which involved the theory that neither the EPA nor the Corps should apply the usual CWA permit requirements to the initial discharge of mine waste. Part IV evaluates the legal basis for that decision and concludes, based on the language of the CWA, the EPA’s own prior policy, and judicial precedent, that the decision was without justification. Part V discusses possible alternatives to the current policy of allowing tailings to be dumped into impounded streams and wetlands under the pretense that the CWA permit requirements are inapplicable to this sort of waste disposal. These alternatives include marine tailings disposal and legislative reform to explicitly allow or forbid the discharge of tailings into impounded streams and wetlands. Regardless of the particular alternative pursued, environmental issues such as tailings disposal need to be addressed directly rather than avoided through twisted statements of policy.