Groups challenge Rock Creek Mine water permit

Four environmental organizations contend that a copper-sliver mine proposed to tunnel beneath the Cabinet Mountains Wilderness would rob the region’s streams of water.

On Aug. 31, the groups sent a formal objection to the Montana Department of Natural Resources and Conservation, asking that the agency not grant a water-right permit to the Rock Creek Mine. They argue that the DNRC would be breaking three state laws if it allowed the Hecla Mining Company to use the groundwater that would seep into the shafts as miners worked their way underground.

Streams depend on groundwater to bolster their flows as snow and rain runoff dwindles throughout the summer. Hydrologists know about the connection between surface and groundwater but the Montana Supreme Count also recognized relationship, ruling in 2006 that the DNRC must factor in the effect on surface water rights when considering a permit request for groundwater.

If the mine removes as much groundwater as predicted in its water-right application, streams in the wilderness and surrounding area could get dangerously low. The mining company provided the groundwater estimates based upon computer modeling.

But it’s unlikely that they considered the recent situation where much of Montana, and specifically Sanders County, is under a drought alert.

Some of the affected streams include the Bull River, the Clark Fork River, Copper Gulch and Rock Creek.

Not only is that potentially detrimental to the environment in general, but it could also end up killing some of the area’s threatened bull trout. Endangered grizzly bears are also struggling to survive in the Yaak-Cabinet region of northwest Montana, and reduced streamflows could make their existence even more tenuous.

Even so, the DNRC announced its preliminary decision to grant the permit request on June 22. That started a clock that required any protest to be filed with the DNRC by Sept. 2.

In their objection, the groups - including the Clark Fork Coalition, the Rock Creek Alliance, the Montana Environmental Information Center and Earthworks – argue that Montana law bars Hecla from receiving a water permit in the Cabinet Wilderness.

For one thing, Montana has mandated that no one use can degrade outstanding resource waters, and according to the Water Quality Act, “…all state surface waters located wholly within the boundaries of designated national parks or wilderness areas as of October 1, 1995, are outstanding resource waters.”

Since pulling groundwater would degrade the wilderness streams, the DNRC would be granting a permit for illegal use, the groups argue.

In addition, the law requires that the applicant prove that the requested amount of water is actually available. The mining company has not done the testing and analysis to prove that.

Finally, the U.S. Forest Service has yet to give Helca a special-use permit for mining activities or diversion of national forest water so granting a Montana water use permit is premature. While that might seem like a matter of dotting “i’s” and crossing “t’s”, a few details may still delay and perhaps prevent the Forest Service from issuing a permit so the groups argue the DNRC is putting the cart before the horse.

The effort to develop a mine under the Cabinet Mountains Wilderness has been going on for almost 30 years but has run into several delays. An initial 2001 environmental impact statement was not favorable and the previous mining company successfully challenged it in court.

Seven months ago, the Forest Service issued a more favorable draft supplemental study, which got the ball rolling for the mining company. The problem is that the original plan didn’t include the amount of groundwater that the company recently applied for, said Earthjustice attorney Katherine O’Brien. So that raises red flags not only for the state’s approval of the water permit but also the Forest Service study and the biological opinion of the U.S. Fish and Wildlife Service that found in 2014 bull trout wouldn’t be affected.

“We’re exploring a number of angles to address (all the threats). We’ve asked the FWS to take another look at the impacts on bull trout. They said if something changes, if they see new evidence that there is an effect on bull trout because streamflow changes, they will reinitiate consultation. We all now know there will be an effect on streamflows,” O’Brien said. “But the DNRC process is really important because if they finalize this decision, the mine will have a legal right to appropriate this water. This is really our only opportunity to address this issue.”

If the DRNC finds the objection is valid, it will hold a hearing to consider the arguments. From there, the arguments could proceed to district court if either side wants to continue the challenge.