The Army Corps of Engineers has suspended early consultation with Native American tribes over the fate of wetlands and streams under a Trump-era Clean Water Act rule — a move that's drawing pushback as a controversial mining project moves forward in Arizona.
In a Jan. 4 memo, R.D. James, then-assistant secretary of the Army for civil works, directed the Army Corps' Los Angeles District not to consult with tribes regarding the proposed Rosemont Copper mine, even though the district had earlier agreed to those discussions.
James, a Trump appointee who is no longer with the agency, wrote in the memo that, as a "matter of nationwide programmatic policy," the Army Corps "shall not initiate tribal consultation on any future" jurisdictional determinations and that "should a tribe request consultation with respect to a given project, such consultation should be undertaken at the permit stage." That policy is now in place across the nation.
Such "jurisdictional determinations," good for five years, pave the way for mining companies, developers and property owners to obtain permits to fill or dredge streams, tributaries, lakes and wetlands, ditches, swales and stormwater ponds. Wetlands and streams that are not given federal protections can be damaged and destroyed forever, along with their abilities to sequester carbon and protect downstream water quality.
The standing Army Corps policy could conflict with President Biden's order directing agencies to engage in "robust" tribal consultation, as well as the administration's review of the Navigable Waters Protection Rule that took effect in June, which has resulted in the Army Corps' finding that the bulk of waterways don't qualify for federal protection (Greenwire, March 19).
Doug Garman, a spokesperson for the Army Corps, confirmed that the memo provides direction across the agency on tribal consultation requirements when approving jurisdictional determinations, and "it is not limited to a specific project or district."
When asked if the policy is still in effect, Garman responded: "The memo is still in effect, and there is no end date at this time."
One former Army Corps official said the memo amounts to "bad policy" that appears to cut tribal governments out of weighing in early on decisions that provide the basis for future action — namely, permitting — that could affect tribal governments' lands.
As a matter of good governance, the agency should work with tribes and hear concerns as early as possible before expending resources on a project, said John Eisenhauer, who served as commander and district engineer of the Army Corps' Portland District in Oregon from 2011 to 2013 and is now a senior adviser at Dawson & Associates, a firm that specializes in federal water permitting.
"Frankly, I think this a bad policy," said Eisenhauer.
'Two different tunes'
Last week, the Army Corps published a new determination for the Rosemont mine, finding that the federal government no longer has Clean Water Act jurisdiction over waters at the project site in the Coronado National Forest.
The Army Corps had previously found that about 102 acres of waters at the site were potentially under federal jurisdiction. That included 154 ephemeral streams and springs encompassing about 18 miles.
The determination comes as a coalition of Native American tribes are fighting the Navigable Waters Protection Rule in the U.S. District Court for the District of Arizona. The tribal consultation memo is an exhibit in that case.
The federal government asked the court last month to pause litigation while it reviewed the definition of "waters of the United States," which would prevent the tribes from challenging the rule.
Meanwhile, the Army Corps was working to implement the Trump-era rule at the 5,431-acre Rosemont mine site to the detriment of the Pascua Yaqui Tribe, the Hopi Tribe and the Tohono O'odham Nation.
Stu Gillespie, an Earthjustice attorney representing the tribes, said the federal government's actions represent a "clear inconsistency."
"It's as if the government is playing two different tunes," he said in an email.
Army Corps Los Angeles District spokesperson Dena O'Dell said the agency has a duty to carry out the current rule. Canada's Hudbay Minerals first requested the jurisdictional determination in 2019, and a contractor for the company wrote to the Army Corps in December about the decision.
"An approved jurisdiction determination must be finalized consistent with the rule in place ... regardless of when the request was received," O'Dell wrote in an email.
The open-pit Rosemont copper mine is planned on a 5,431-acre site in the Santa Rita Mountains outside of Tucson. Hudbay expects the mine to produce 140,000 tons of copper annually for the first 10 years of operation. Demand for the industrial metal could skyrocket as China, the United States and other nations transition to renewable energy, market analysts project.
"We are pleased with the Corps' decision that there are no Waters of the United States within the Rosemont Project area," a spokesperson for Hudbay said. The company expects court cases over their Rosemont's Clean Water Act permit to be dismissed once the permit is formally rescinded, the spokesperson added.
A sacred place
The Pascua Yaqui Tribe and the Tohono O'odham Nation say the proposed mine's location in the Santa Rita Mountains is a sacred place that is home to numerous burial sites.
"These Mountains, and in particular the site of the proposed mine, are like an outdoor cathedral — serving as a place of prayer and remembrance for me and my people," wrote Austin Nunez, chairman of the Tohono O'odham Nation's San Xavier District, in a court filing.
The mine still faces legal hurdles before it can proceed, despite the new jurisdictional determination. The Forest Service first approved the project in 2017, and the corps gave it a Clean Water Act permit in 2019. Both decisions were challenged in court.
The Army Corps under the Obama administration declined to permit Rosemont. EPA had also concluded that the mine would have "substantial and unacceptable" impacts on streams and wetlands, according to documents obtained by the Arizona Daily Star.
Under President Trump, however, both agencies reversed course. Rosemont, which had employed former Interior Secretary David Bernhardt as a lobbyist, obtained federal permits.
But just as bulldozers were ready to begin construction at the mine site in 2019, a federal judge halted the project.
The Forest Service hadn't validated Hudbay's mining claims for acreage where the company planned to store waste rock, U.S. District Court Judge James Soto determined. The Army Corps suspended the permit in response. The case is now before the 9th U.S. Circuit Court of Appeals (Greenwire, Feb. 2).
'Seems like a hand wave'
When asked whether tribes have weighed in on jurisdictional determinations in the past, Garman said it may have occurred.
"There is the potential that some consultation could have occurred as part of the application review process when an AJD [approved jurisdictional determination] was being performed concurrently and/or if there are specific regions where such consultation may have been standard practice," Garman said.
"However, if such consultation did occur, the headquarters staff would not need to have any visibility on whether it has occurred and to what extent district offices may have engaged," he added.
Eisenhauer said the purpose of government-to-government consultation stems from treaties signed in past decades and serves to resolve conflicts or issues early on. Cutting tribes out of the process at the stage of a jurisdictional determination being made, he said, could create more issues down the road.
He took particular issue with language in the memo stating that a jurisdictional determination "is not an action that could 'significantly affect tribal resources, tribal rights ... or Indian lands.'"
Based on treaty language and his personal experience, he said, tribes should have a say in informing the Army Corps' decisions about whether jurisdictional determinations may affect tribal resources, rights and Indian lands on a case-by-case basis.
"You're saying there's not a single instance across our entire nation where doing an AJD would significantly affect tribal resources, rights or Indian lands?" he said, emphasizing the unique aspects of projects across the nation. "To make such a broad determination seems like a hand wave."
If Taylor Ferrell, the current acting assistant secretary of the Army for civil works, or an eventual Biden nominee doesn't reverse the policy, Eisenhauer said, the matter will likely be decided in court. Biden, notably, has appointed Jaime Pinkham, a member of the Pacific Northwest's Nez Perce Tribe, to serve as principal deputy assistant secretary of the Army for civil works, a post that doesn't require Senate confirmation.
"There are enough tribes out there who will see this as a significant enough issue that they will take it to court," said Eisenhauer.