Idaho Conservation League v. Poe: Ninth Circuit Affirms Clean Water Act Liability for Idaho Suction Dredge Miner

Congratulations to the Idaho Conservation League.

The Ninth Circuit Court of Appeals upheld the Idaho district court’s decision in Idaho Conservation League v. Poe, a citizen suit enforcement case brought against a suction dredge miner who operated without obtaining a Clean Water Act (CWA) NPDES permit.  As I had anticipated from watching the oral argument, the Court upheld the lower court’s finding the miner liable for a $150,000 civil penalty, holding that (1) suction dredging adds pollutants to the river and thus requires an NPDES permit; and (2) EPA and the Corps reasonably treat suction dredge discharges as the type of pollution requiring an NPDES permit and not as dredged material requiring a CWA Section 404 permit.  

Image from ICL’s Answering Brief in ICL v. Poe. (2023)

Simply put, the Court followed its prior and controlling precedent in Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990).  The big point is that the resuspension of streambed materials resulting in the dredging operation is nonetheless the “addition” of a pollutant, even though the materials originated within the streambed.  This is different from cases where polluted waters are moved from one location in a waterbody to another.  The decision can be found at this LINK.