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US Supreme Court declines to hear dredging controversy

June 15, 2020

by Scott Harn, Editor/Publisher
ICMJs Prospecting and Mining Journal

The US Supreme Court denied to hear the latest case involving Section 402 Clean Water Act permitting in Eastern Oregon Mining Association v. Oregon Dept. of Environmental Quality.

The miners sued the Oregon DEQ in this case after the agency asserted that the "mere movement" of material already within a waterway constituted the addition of a pollutant under the Clean Water Act. The Oregon Supreme Court ruled in favor of DEQ and the miners appealed to the US Supreme Court.

Like several other western states, Oregon handles Section 402 permits under a memorandum of understanding with the Environmental Protection Agency (EPA).

The matter appeared to be ripe for review as this is an ongoing permitting program that continues to ignore the intent of Congress by forcing miners to apply for a Section 402 permit when no such "addition" of a pollutant occurs. The miners were hopeful the US Supreme Court would take up the case after the court requested additional briefs be submitted. However, for reasons we cannot ascertain, the US Supreme Court did not include the case in their list of cases they would be hearing this term.

We are cautiously optimistic that the petition for rulemaking/clarification filed with the EPA and Army Corps of Engineers by miner Donald G. Smith of Idaho with help from Public Lands for the People will remedy this situation. The petition asks the agencies to clarify that Section 402 does not apply to suction dredging because there is no addition to trigger the need for a permit and we believe this petition is in the hands of the correct person now within the Trump administration. We'll keep you posted.

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