Legislative and Regulatory Update
February 2013 by Scott Harn• “Not a pollutant”
A recent US Supreme Court ruling regarding the transfer of “pollutants” from one portion of a river to another is a win for miners.
The Natural Resources Defense Council sued the Los Angeles County Flood Control District, alleging the county was polluting a stream when it took polluted water from one portion of a river and transferred it to another portion of the same river through a concrete channel.
The Ninth Circuit had ruled that the water transfer violated the Clean Water Act. In a unanimous decision, the US Supreme Court reversed the decision of the Ninth Circuit.
The Court stated, “...the transfer of polluted water between two parts of the same water body does not constitute a discharge of pollutants under the CWA. 541 U. S., at 109–112. We derived that determination from the CWA’s text, which defines the term ‘discharge of a pollutant’ to mean ‘any addition of any pollutant to navigable waters from any point source.’ 33 U.S.C. §1362(12). Under a common understanding of the meaning of the word ‘add,’ no pollutants are ‘added’ to a water body when water is merely transferred between different portions of that water body.”
The full Supreme Court decision is available online:www.supremecourt.gov/opinions/12pdf/11-460_3ea4.pdf
One of the major regulatory tools agencies have used against in-stream placer miners—and suction dredgers in particular—has been struck down by this decision!
Other courts have also blocked overzealous water regulators. In Virginia, District Judge Liam O’Grady ruled that the EPA exceeded its authority by attempting to regulate stormwater runoff as a pollutant.
And in Siskiyou County, California, Superior Court Judge Karen Dixon found that the California Department of Fish & Game overstepped its authority by requiring permits for farmers and ranchers to take water from the Shasta and Scott Rivers.
• Thank you Senator Sessions
Our hats are off to Senator Jeff Sessions (R-Alabama) for stopping a wildlife bill comprised of nineteen separate measures that would have placed thousands of additional public lands off-limits to miners and other public land users.
Sessions called for a procedural vote on the budget impacts of the bill, and sixty votes were needed to keep it alive. Fifty senators voted for it, and the bill died.
Before we let our guard down, realize that there will surely be an omnibus lands bill proposed in 2013. These bills always include numerous items in an effort to appease a large number of legislators to get the bill passed.
You should also expect to see the BLM attempt to enact mining law reform with the help of like-minded legislators. The previous BLM Director, Bob Abbey, recommended that gold, silver, lead, zinc, copper, uranium and molybdenum be subject to leasing with a 5% royalty during his March 2012 presentation to the House Appropriations Committee.
• California suction dredging
The court challenge of the current suction gold dredging moratorium in California continues along—albeit way too slowly for our liking. The next hearing has been rescheduled for 8:30am on February 13. Miners are encouraged to attend to show their support. The address is:
Rancho Cucamonga Superior Court
8303 Haven Ave
Rancho Cucamonga, CA 91730
Judge Gilbert G. Ochoa
In last month’s column, we mentioned that Brandon Renehart, a suction dredger in Plumas County, California, is challenging his criminal citation for suction dredging without a permit with the assistance of James Buchal. However, we neglected to give credit to Public Lands for the People for funding this effort!
• EPA uses secret email accounts
EPA Administrator Lisa Jackson announced her resignation in December, citing “new challenges, time with my family and new opportunities to make a difference” for the move.
But there is more to the story.
In response to a lawsuit filed by the Competitive Enterprise Institute (CEI), the EPA acknowledged that Jackson was utilizing an email alias.
It’s an obvious attempt to avoid public disclosure when requests were made under the Freedom of Information Act, said CEI attorney Chris Horner. The EPA has since admitted that Jackson corresponded regularly with other officials using the alias “Richard Windsor.”
Horner stated the agency has been using secret email accounts since the Clinton administration when Carol Browner was the administrator. An EPA spokesman confirmed this practice was the norm, stating the agency has been issuing multiple email addresses to administrators for the past decade.
The EPA has turned over the first 2,100 email messages to CEI that used Jackson’s alias, and another 9,000 are to be released shortly.
Met by jeers and cheers from more than 1,000 people, US Senator Diane Feinstein (D-CA) made another pitch to create three new national monuments in the deserts of southern California recently.
“When dealing with federal agencies...”
The Washington Department of Fish and Wildlife (WDFW) issued emergency rules without public comment just prior to our publication deadline.
A two-pronged approach is necessary to restore suction dredging; federal preemption needs to be established as addressed above via petition; and clarification from the EPA is needed to establish that no Section 402 permit is necessary when there is no “addition” of a pollutant.
Representative Paul Shepherd stopped by, and Idaho County Commissioner Jim Chmelik dove with one of the dredgers so he could see for himself that no harm was being done to fish or their habitat.
On October 19, 2015, the Waldo and Galice Mining Districts (of SW Oregon), along with several Oregon mining organizations and individuals, filed a Complaint in the United States District Court in Medford…
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