If This Doesn't Violate the Clean Water Act, What Would?

Start with a pristine mountain lake in the Alaskan wilderness. Add toxic waste. Kill all the fish. Wipe the lake off the map.

Bad for that lake, yes. But is it pollution?

The seemingly obvious answer to that question (umm, yes?) is at the heart of a case the Supreme Court has agreed to hear this winter.

In this corner, weighing in at 140,000 ounces of gold per year, is the Kensington mine, owned by Coeur Alaska (and the state of Alaska, which approved its plans to spoil the lake). And in the other corner, weighing in at 23 acres, Lower Slate Lake in the Tongass National Forest (with some help from Earthjustice, a group of lawyers that fights the power on behalf of environmental groups).

The Kensington gold mine near Juneau has the Army Corps of Engineers and state permits it needs to dump its mining waste in the lake, according to the Anchorage Daily News, but the environmental groups – and the highest court to hear the case so far – have argued that doing so would violate the Clean Water Act. (Because – did I mention this? – it would kill all the fish and destroy the lake.)

"Modern mines have never been allowed to dump tailings into lakes. The federal Clean Water Act prohibits it, and for good reason," said Tom Waldo, an Earthjustice attorney. "The Ninth Circuit's decision confirms a rule of law that has been in place for over 30 years, and we are hopeful that the Supreme Court will come to the same conclusion."

Gold mining is among the most polluting endeavors on Earth, and Kensington is not alone among controversial Alaskan mines. Gold mines are the nation's largest source of mercury pollution, for instance. (See the top 10 polluters.) Like all mining, it destroys the landscape that holds the valuable minerals; in addition, separating and processing the gold creates tons of toxic metals, like lead and mercury. That would all be dumped in the lake (killing all the fish and destroying ... oh, you get the point).

This Supreme Court has not sided with environmentalists in recent Clean Water Act cases. A 2005 decision struck down federal jurisdiction over streams, ponds and swamps that aren't clearly connected to navigable water, like deep rivers with a channel. That left an estimated 60% of U.S. waters unprotected, and open for development, filling or draining.

Lower Slate Lake is navigable, so the Environmental Protection Agency should have the jurisdiction it needs to protect it against blatant pollution. The Supreme Court will decide whether that's the case.