PART 1: ARMY CORPS OFFICIAL FINDING & WARNING 1
• Author(s): US Army Corps of Engineers • Title: Special Public Notice 94-10 • Source: US Army Corps of Engineers, SPN 9410, Sept. 13, 1994 • Purpose: To show the finding of de minimis (inconsequential) effects on aquatic resources for 4-inch and less suction dredges and hand mining. • Method(s): results of field studies and court decisions 2
• Conclusion(s): Four-inch and smaller dredges have inconsequential effects on aquatic resources. • “This is an official recognition of what suction dredgers have long claimed; that below a certain size, the effects of suction dredging are so small and so short-term as to not warrant the reg- ulations being imposed in many cases. The U.S. Environmental Protection Agency (EPA), has ignored this concept, although numerous studies, including the EPA's own 1999 study of suction dredging, repeatedly and consistently support the Corps finding de minimis effects.” 3
• “The reports consistently find no actual impact of consequence on the environ- ment, and so almost always fall back to the position that potential for impact exists. Studies to date have not shown any actual effect on the environment by suction dredging, except for dredges of larger than 4 inches generally has more than de minimis effects on the aquatic environment and therefore requires authorization.” 4
THE ARMY CORPS WARNS: "The regulatory agencies should be consistently and continually challenged by the dredging community to produce sound, scientific evidence that support their proposed regulations. To regulate against a potential for harm, where none has been shown to exist, is unjustifiable and must be challenged ."
PART 2: 6
AN EXAMINATION OF THE CLEAN WATER ACT IN RELATION TO IN-STREAM SMALL SCALE PLACER MINING DISCHARGES (EPA - NPDES) S E C T I O N 4 0 2 v s . (USACE) S E C T I O N 4 0 4 WH I C H I S C O R R E C T ? 7
I L L I NO I S R I V E R , J O S E P H I NE C O UNT Y , O R E G O N THE NATIONAL WILD & SCENIC ILLINOIS RIVER (“SCENIC” SEGMENT). THIS PICTURE WAS TAKEN LESS THAN 500 FEET UPSTREAM FROM THE MOUTH OF JOSEPHINE CREEK, THE SITE OF THE 1 ST GOLD DISCOVERY IN OREGON. THE AREA HAS BEEN MINED ALMOST CONTINUOUSLY SINCE 1851. EVERY ROCK IN THE PHOTO HAS BEEN MOVED… SEVERAL TIMES. THERE ARE AT LEAST 5 SMALL SUCTION DREDGES IN THE PHOTO.
OVERVIEW OVERVIEW • Since at least the 1990’s, DEQ and the EPA have insisted that the discharge from small-scale suction dredge mining operations fall under the authority of Section 402 of the Clean Water Act . . . • . . . And at least since 2004, Oregon miners have insisted that Section 402 does not apply . . . 9 9
In 2005, DEQ adopted a new permit for suction dredge mining in Oregon . . . GENERL PERMIT, “700PM”. This permit was issued pursuant to ORS 468B.050 and Section 402 of The Federal Clean Water Act. Two challenges were filed against the 2005 permit, 1. From a group of environmental organizations (NEDC et. al); and 2. From a mining association (EOMA). 10 10
On December 23, 2009, the Oregon Court of Appeals ruled that: 1. “…the discharge of dredged material is within the exclusive regulatory authority of the Corps . . .” 2. “ . . . the EPA lacks authority to permit those discharges , and, by extension, EQC does not have authority to permit those discharges through its state implementation of the NPDES program.” (Emphasis added) 11 11
3. “. . . small suction dredge mining typically involves the placement of dredged spoil and mining tailings in piles . . .”, and 4. the “. . . discharge of dredged material ." 5. “Such discharges are regulated exclusively by the Corps under section 404, and not the EPA.” 12 12
However, in summary, the court stated: “. . . small suction dredge mining involves discharges of . . . . . . dredged material that are permitted by the Corps and . . . . . . discharges of turbid wastewater that are permitted by the EPA .” 13 13
THIS RAISES THE QUESTION . . . THIS RAISES THE QUESTION . . . • Can both 402 and 404 permitting be required for the single source discharge? • According to the Oregon court . . . YES. • However, according to the U.S. Supreme Court . . . NO. 14 14
ACCORDING TO THE ACCORDING TO THE U.S. SUPREME COURT IN JUNE, 2009*: U.S. SUPREME COURT IN JUNE, 2009*: “…a two-permit regime is contrary to a two-permit regime is contrary to “… the statute and the regulations.” .” the statute and the regulations Therefore, a discharge of fill (dredged) Therefore, a discharge of fill (dredged) material requires a 404 permit only, material requires a 404 permit only, not an NPDES permit under 402. not an NPDES permit under 402. * Coeur Alaska, Inc. v. Southeast Alaska Conservation Council * Coeur Alaska, Inc. v. Southeast Alaska Conservation Council 15
WHAT DOES THE LAW SAY? WHAT DOES THE LAW SAY? Title 40: Protection of Environment Title 40: Protection of Environment PART 122—EPA ADMINISTERED PERMIT PROGRAMS: PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM Subpart A—Definitions and General Program Requirements Subpart A—Definitions and General Program Requirements § 122.3 Exclusions. § 122.3 Exclusions. The following discharges do not do not require NPDES permits: require NPDES permits: The following discharges (b) Discharges of dredged or fill material dredged or fill material (b) Discharges of into waters of the United States which are which are into waters of the United States regulated under section 404 of CWA. . regulated under section 404 of CWA 16
THE OREGON APPEALS THE OREGON APPEALS COURT STATED: COURT STATED: “In the case of small suction dredges… In the case of small suction dredges… sediment and sediment and “ water are sucked up by a machine and everything by a machine and everything water are sucked up that is not being kept by the miner is then discharged then discharged that is not being kept by the miner is or added back to the water …” …” (as a re-deposit only, NOT or added back to the water (as a re-deposit only, NOT . AS AN “ADDITION”) . AS AN “ADDITION”) Therefore, in the case of suction dredge discharges, Therefore, in the case of suction dredge discharges, the “dredged material” “dredged material” consists entirely of: consists entirely of: the 1) sediment sediment, , and 1) and 2) water water 2) 17
The rocks, gravel, and sand sucked up The rocks, gravel, and sand sucked up by a suction dredge are all “dredged “dredged by a suction dredge are all material”. . material” The finer sediment that stays in The finer sediment that stays in suspension is also “dredged material” “dredged material”; ; suspension is also in that its source is the streambed its source is the streambed, not , not in that the dredge. the dredge. The water going through a suction The water going through a suction dredge and discharged back into the dredge and discharged back into the stream is also “dredged material” “dredged material”. . stream is also 18
It is important to note that any turbidity in It is important to note that any turbidity in relation to suction dredge operations is caused relation to suction dredge operations is caused by the movement and excavation of the by the movement and excavation of the streambed material. streambed material. The water entering the nozzle of a suction The water entering the nozzle of a suction dredge is already turbid, and contains 100% of dredge is already turbid, and contains 100% of the turbidity causing particals. the turbidity causing particals. No physical part of the suction dredge itself No physical part of the suction dredge itself causes or creates any (i.e., zero) additional causes or creates any (i.e., zero) additional turbidity. turbidity. It is the movement of streambed material that It is the movement of streambed material that causes turbidity, not method used. causes turbidity, not method used. 19
THE U.S. ARMY CORPS OF ENGINEERS THE U.S. ARMY CORPS OF ENGINEERS REGULATES AND PERMITS SUCTION REGULATES AND PERMITS SUCTION DREDGE DISCHARGES DREDGE DISCHARGES The U.S. Army Corps has officially declared the effects and The U.S. Army Corps has officially declared the effects and discharges from four (4) inch suction dredges (and smaller) discharges from four (4) inch suction dredges (and smaller) as “de minimus” “de minimus” *, and exempt from needing a 404 permit. *, and exempt from needing a 404 permit. as The Corps requires Individual 404 permits for suction The Corps requires Individual 404 permits for suction dredges using hoses larger than 4” (I.D.) dredges using hoses larger than 4” (I.D.) * * US Army Corps of Engineers, SPN 9410, Sept. 13, 1994 US Army Corps of Engineers, SPN 9410, Sept. 13, 1994 In order for the Corps to exempt certain size dredges they must first have In order for the Corps to exempt certain size dredges they must first have the authority to regulate their use. Just because the Corps exempts these the authority to regulate their use. Just because the Corps exempts these operations does not mean they can be regulated by the EPA. operations does not mean they can be regulated by the EPA. 20
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