Wednesday, April 20, 2011

Clean Water Act puts Kalmiopsis mining plan on hold

A little known Oregon Administrative Rule—established when Tom McCall (R) was Governor and recently brought to light when mining groups sued the State of Oregon—has cast a chill on a Washington company's plans to mine the Wild Chetco River in the Kalmiopsis Wilderness.

The exceptional clarity of the Chetco's water in the Kalmiopsis Wilderness may make it impossible to mine in the Wilderness and comply with the Clean Water Act. It has implications for the validity of the three remaining mining claims in the Kalmiopsis, possibly making them worthless. But its up to the State of Oregon and the Forest Service to comply with and defend the Clean Water Act Rule. Zach Collier, Northwest Rafting Company photo.
On April 19, 2011, the Associated Press and Oregonian reported:
The Forest Service has suspended an environmental review of Rutan's gold mining plan [in the Kalmiopsis Wilderness] until he resolves the issue with the state ...
In a January 7, 2011 letter to the director of the Oregon Departmental of Environmental Quality (ODEQ), the Rogue River-Siskiyou National Forest supervisor asked for clarification of the Clean Water Act (CWA) permits that Chetco River Mining and Exploration (CRME) needed for its planned mining of the Chetco River claim known as Gold #11.  The letter notes that considerable funds and time will be required to prepare an environmental impact statement for the mining and that before approving any mining the Forest Service needs at the very least need a CWA 401 Certification.

The letter continues:
"Oregon Administrative Rules (OAR 3401-13) also prohibit any increase in turbidity from mining operations within the Kalmiopsis Wilderness.  Considering the expected clear water throughout CRME's project area during the in-water work period for this river required by Oregon State regulations, it does not appear likely that CRME can comply with this non-turbidity requirement while operating any suction dredge within its mining claims."
"Based on past mineral examinations along the Chetco River in the vicinity of this CRME mining claim, it is probable that the entire mineral deposit is located between the ordinary high water marks of the river.  In the experience of Forest Service mining administrators, the only viable means of exploiting this deposit is by use of suction dredges ...  and it does not appear as if the State of Oregon will allow suction dredging in this location because of the increased turbidity ..."
The Forest Supervisor asked ODEQ for a preliminary analysis of the likelihood that CRME would be able to comply with the CWA.  The stated purpose of the request was so the Forest Service didn't needlessly spend funds evaluating a mining operation that the State might not approve.  A Freedom of Information Act request reveals that the estimated cost of the EIS for just the Gold #11 mining plan is $430,000.

On January 28, 2011 ODEQ replied to the Rogue River-Siskiyou National Forest's inquiry:
"... the federal CWA allows states to impose water quality requirements that go beyond the minimum requirements of EPA-approved water quality standards.  The Environmental Quality Commission has adopted special administrative rules applicable to certain wilderness areas including the Kalmiopsis. OAR 340, Division 13... An individual permit would need to include conditions appropriate to implement the general policies established under OAR 340-013-0005 and, under OAR 340-013-0020, any discharge must not cause a measurable increase in turbidity. 
"In summary, it is likely that an NPDES permit could not be issued that would authorize the discharges expected to result from the mining activities as described in [CREME's] proposed plan of operations [for Gold #11].  Similarly, it is likely that a Section 401 certificate could not be issued unless it included conditions that would be inconsistent with the current proposal."
The ball is now in CRME's court and because the Kalmiopsis Wilderness is withdrawn from the 1872 Mining Law,  CRME cannot legally mine the Chetco River claims in the Kalmiopsis Wilderness until the Forest Service:
  • determines that the mining claims constitute a "valid existing right" under the law and 
  • approves a mining plan of operations.
The Forest Service cannot do the latter until the State of Oregon issues the required permits and the former will likely be contingent on the mining methods the State approves, if any.

CRME's website recently announced they've developed a relationship with Team Dorsey and entered a contract for Gold #11.  There's no telling what this means.  The important thing for the public to understand is that neither CRME or anyone else can legally mine or land helicopters anywhere in the Kalmiopsis Wilderness outside of the 45 acre private inholding on the Little Chetco River.  Nor can they commercially film on the mining claims or in the Wilderness without a permit from the Forest Service.

Wilderness users should report any helicopter landings or mining activities in the Wilderness to the Rogue River-Siskiyou National Forest  (except those on the 45 acre Little Chetco inholding).  See map for inholding location.