Enviros argue Rosemont's push to mine to west side of Santa Ritas violates federal law

Led by Center for Biological Diversity, environmental groups filed a notice of intent—a prelude to a federal lawsuit—against Rosemont Copper, arguing the company violated federal law by dumping debris into dry streams along the western slope of the Santa Rita Mountains as part of an effort to reinvigorate plans for an open-pit copper mine about 30 miles southeast of Tucson.

On Thursday, Allison Melton, senior attorney for the Center for Biological Diversity and Roger Flynn, the director and managing attorney for the Western Mining Action Project, wrote that Rosemont's parent company, the Toronto-based Hudbay Minerals, Inc., violated the Clean Water Act by "filling, grading, and destroying" a network of ephemeral streams—dry river washes that will flood during monsoon rains—at its Copper World Expansion site, and had done so without a federal permit.

For the last 15 years, the Rosemont Copper mine has been thwarted by fierce response from environmental groups, who have argued that the mine—which ultimately could include a mile-wide, half-mile-deep pit across 2,500 acres—would seriously harm the Santa Rita Mountains, and destroy prime habitat for jaguars.

The Center and Western Mining Action were joined by Sierra Club's Grand Canyon Chapter, and Save the Scenic Santa Ritas.

Last month, Rosemont Copper said that it would ramp up grading and clearing on a 3,500-acre site southeast of Sahuarita, on a chunk of private land known as the Helvetia Mining District. Rosemont officials told officials with the Pima County Regional Flood Control District they would begin "clearing, grading, stockpiling and other earthwork activities" as part of the project, which would be used "in connection" with Rosemont's future mining and metallurgical operations.

The open-pit mine mine would directly affect more than 950 acres of land, and the company originally planned to dump around 1.9 billion tons of waste rock on nearly 2,500 acres of land in the Coronado National Forest, part of Southern Arizona’s "Sky Islands," and part of the range of the endangered southern jaguar and the ocelot, as well as nearly a dozen other endangered and critical species. Overall, around 3,653 acres of the Coronado National Forest will be impacted by the mine's operation.

However, the Center for Biological Diversity demanded Rosemont cease this activity because the area includes a dense network of ephemeral streams protected by the Clean Water Act. By dumping debris into these streams, the company must get permission from federal officials, known as as a section 404 permit. If the company refuses, it's violating federal law.

Along with Hudbay officials, the letter also included officials at the Environmental Protection Agency, and the Arizona Department of Environmental Quality.

Aerial photos taken by the Center earlier this month show soil and rocks spilling into and filling portions of a wash, showing the construction has already begun. Meanwhile, the company's vice president told Pima County officials work would begin on Tuesday, April 12.

"It’s appalling to see Rosemont running roughshod over the feet of these beautiful mountains," said Melton, in a statement. "This may be private property, but the company doesn’t have the right to pollute waters our communities and wildlife need to survive. We’re putting Rosemont on notice that it needs to stop operations now and go through the Clean Water Act permit process."

"Southern Arizona's Santa Rita Mountains—the site of the proposed Rosemont open-pit copper mine—contain some of the highest-quality streams and ecosystems in the desert southwest," wrote Melton and Flynn. However, Rosemont's activities would affect around 95 dry streams that reach out toward Green Valley and Sahuarita.

Rosemont sought, and received, a permit from the U.S. Army Corps of Engineers for activity on the east-side of the Santa Ritas. However, that permit was overturned by a federal judge, and officials suspended the permit, telling Rosemont that it would not discharge fill material into "waters of the United States under its suspended permit."

"Rosemont has since pursued a new strategy to expand its mining operations to the west side of the Santa Rita Mountains," wrote Melton and Flynn.

Instead of dealing with the suspended permit on the east side of the mountains, the company moved to use 3,503-acres of private land as part of the Helvetia Mining District to begin its operations, planning what it called the Copper World Expansion mine, which would include digging two new pits, constructing three tailings piles, and the dumping of 64 million tons of waste.

As Melton and Flynn wrote, Rosemont's disclosure shows the company will add new mine pits to the site, and the effort will slash across the Santa Rita Mountains from east to west. 

While the new mining project will likely affect streams toward Sahuarita and the Santa Cruz River, Rosemont has "refused to obtain a Clean Water Act section 404 permit prior to dredging and filling these streams to construct the Copper World Expansion." Melton and Flynn wrote that the Tohono O'odham Nation, the Pascua Yaqui Tribe, and the Hopi Tribe have asked the company for confirmation that it started construction activities, but "received no response."

"We urge Rosemont to cease any construction activities, including discharges of dredge or fill material, remediate any dredge or fill activities, and apply for a section 404 permit, as the Clean Water Act requires," they wrote.

"After years of declaring little or no interest in the western slopes of the Santa Rita Mountains, Rosemont is now showing their true hand,” said Gayle Hartmann, board president of Save the Scenic Santa Ritas. "They want to pursue complete and utter destruction of the ridgeline and slopes of the northern Santa Ritas. An almost certain outcome would be serious impacts to our already fragile watershed, in particular washes that support the Santa Cruz River. We’re not going to stand by and let the company ignore federal law as they significantly deface a beloved, local sky island."

“This wanton destruction of desert washes is unconscionable and inconsistent with the mandates of the Clean Water Act,” said Sandy Bahr, director for Sierra Club's Grand Canyon Chapter. “We simply cannot stand by and allow this multinational mining company to harm our precious Arizona waters."

Washes and other ephemeral streams like those on the mine expansion site play a vital role in maintaining the chemical, physical and biological health of waters downstream, said the Center. In addition to the buried wash, the Center’s aerial photos showed "a vast network of roads, grading and hillside excavation."

Roger Featherstone, director of the Arizona Mining Reform Coalition, said that Hudbay "feels it’s above the law in its quest to mine the Santa Rita Mountains."

"As U.S. courts have found, Hudbay’s plans to mine at Rosemont are illegal," he said. "Now, instead of revising their Rosemont plan to obey the law, the Canadian mining company has come up with a bizarre plan to cobble together a project that would destroy the west side of the Santa Rita Mountains. This plan clearly violates the Clean Water Act and we have no choice but to go to court to stop this blatant violation of federal law." 

Hudbay also faces a similar challenge from EarthJustice,who filed their own notice-of intent to sue over violations of the Clean Water Act at the expansion site.

Pima County's response hamstrung

On March 10, Javier Del Rio, a Hudbay executive, outlined the company's plans to officials with Pima County's Regional Flood Control District. In the letter, Del Rio said the company was submitting the plans for "review and comment only" and he cited Arizona law, which keeps the district's board from limiting the construction of waste disposal areas for mining operations.

Pima County Administrator Jan Lesher told the Pima County Board of Supervisors that hard rock mines "enjoy exemption from most regulations and Pima County's permitting authority is limited."

"While the Regional Flood Control District Board has some permitting authority over portions of the mine, state law exempt tailings and waste rock storage from permitting, she said, "although plans must be submitted for review and comment." Del Rio's notice was an attempt to satisfy those requirements. The county "does not dispute that tailings or waste rock storage enjoy exemption from floodplain management regulations," however, she said information given to the district was "incomplete and not sufficient to make a determination" about Rosemont's plans.

Del Rio also told the district that he would meet with Lesher and members of the district, but while he would overview Rosemont's stormwater management plans, "considering the amount of planning and commercial commitments involved with this work, I am not able to delay it any further."

"Our initial notice of this exempt work was sent to the [Flood Control District] on March 10, 2022 and the first work in designated floodplains starts today," Del Rio said in an email Tuesday. "As emphasized in my prior letters, this work is entirely on Rosemont's private property and will not involve any significant stormwater diversions that could impact adjacent property owners."