Magazine

Small Mining Operations

Legislative and Regulatory Update

March 2020 by Scott Harn

• NEPA comments due
I hope that many of you have taken the time to send in constructive comments about proposed changes to the National Environmental Policy Act after we mentioned it in last month’s issue. I’ve been to Washington, DC, seven times over the past year with Clark Pearson (of Public Lands for the People) and 13 times over the past four years asking for reasonable NEPA changes from the Trump administration.

The Trump administration is proposing some substantial changes to streamline the permitting process for miners and other public land users, but comments are due by March 10.

We’ve heard from many miners over the past two decades who complained of waiting for five, seven, ten, or even more years for federal agencies to complete the required studies so the miner could get to work. Among the major changes proposed: a one year deadline for federal agencies when a Environmental Assessment is needed; two years for Environmental Impact Statements. These deadlines have been in place for mining projects in Canada and Australia—it’s beyond time for US regulators to get the job done in a reasonable time frame so American miners can get back to work.

You can read and comment on the proposed NEPA changes online: Federal Register Update to the Regulations Implementing the Procedural Provision of the National Environmental Policy Act

• Update on latest US Supreme Court suction gold dredging appeal
As we’ve mentioned several times in our monthly publication, miners in Oregon have petitioned the US Supreme Court to review a lower court decision in Eastern Oregon Mining Association v. Oregon Department of Environmental Quality.

The main contention is that Oregon DEQ has been forcing suction gold dredgers and other in-stream miners to obtain a Section 402 EPA permit under the Clean Water Act when the Clean Water Act clearly states that there must be the addition of pollutant to trigger the need for such a permit. The Oregon State Supreme Court let the 402 permit requirement stand, and the miners appealed to the US Supreme Court.

The appeal is being handled by the Pacific Legal Foundation. This property rights group does not take on cases unless there is a very strong chance of prevailing in court.

We received word that the US Supreme Court has specifically requested a response from the Oregon DEQ; the agency has been ordered to respond. The agency had previously waived its right to file a response to the miner’s petition. This is good news; this means the US Supreme Court is seriously considering accepting this case.

We’ll keep you posted if there are any new developments.

On a related note, Clark Pearson and I will be returning to Washington, DC at the end of March. We plan to meet with the EPA over this very same issue and will seek clarification from the EPA regarding the requirement of an addition before a 402 Clean Water Act permit is needed.

• Washington State tries to restrict suction gold dredging
House Bill 1261 would ban gas-powered suction gold dredging in all areas where threatened or endangered species of fish have been identified.

Washington State legislators continue to ignore that the benefits of suction dredging far outweigh any detriments. These dredges remove heavy metals—including lead and mercury—from waterways while creating the thermal refugia beneficial to fish. (Thermal refugia is an area outside of the fast current of a waterway that can provide a cooler, calmer resting place for fish.)

The bill aims to bring current practices in compliance with the Clean Water Act (CWA). However, as mentioned above, the CWA clearly states there must be the addition of a pollutant to trigger the need for such a permit for suction gold dredging. This is precisely why we here at the Mining Journal have been working with Public Lands for the People to obtain clarification from the EPA on this issue. (You’ll find more discussion on this topic in the PLP Update.)