WCTU Appeals Small-Scale Motorized Mining HPA

In 2020, after years of legislative advocacy, WCTU and others were successful in convincing the Washington legislature to enact a state law that banned suction dredge mining (SDM) in ESA-designated critical habitat for threatened or endangered salmon, steelhead, and bull trout. Background on this effort is described in numerous TU articles and press releases.  See, e.g., Win for Washington waters: What it took (2020).  Yet, in 2023, we learned that several small-scale miners had applied for hydraulic project approvals (HPAs) to resume mining in ESA-designated streams in the Peshastin Creek watershed. 

WDFW Photo of small-scale motorized mining.

The miners propose to mine by pumping creek water to lined ponds above the ordinary high water level.  The WCTU is challenging one of those HPAs by filing a formal appeal with the Washington Pollution Control Hearings Board (PCHB).   WCTU is challenging the HPA on several grounds, including (1) whether WDFW failed to consider how the proposed activity would impact the amount of water in the streams and if it would cause direct or indirect harm to ESA-listed salmon and trout, (2) whether the proposal to discharge process water to the adjacent gravels triggers the requirement to obtain an NPDES permit, and (3) whether WDFW failed to undertake an environmental review under the State Environmental Policy Act.  The Cascadia Law Group represents WCTU pro bono.  A huge thanks!

Ninth Circuit panel is skeptical of suction dredge miner’s defense in $150,000 enforcement action.

Suction dredge mining photograph from brief of Idaho Conservation League.

During oral argument in the appeal of a lawsuit (Idaho Conservation League v. Poe) brought to enforce the Clean Water Act permitting requirements against an Idaho suction dredge miner, the three-judge panel of the Ninth Circuit Court of Appeals expressed strong skepticism toward the miner’s principal defense. 

The miner argued that its suction dredge mining operation does not involve a “discharge” requiring a Clean Water Act NPDES permit because the process does not result in “any addition of any pollutant” to the Clearwater River.  The miner reasoned that gravel, sediments, and other materials disturbed by the mining operation are already in the stream; therefore, nothing has been “added”.  The defect in this argument is that the Ninth Circuit addressed this issue in prior cases, in particular Rybacheck v. EPA, and upheld EPA’s interpretation that the “addition” of pollutants includes the “resuspension” of sand and dirt discharged in wastewater from a placer mining sluice box, “even if the material discharged originally comes from the streambed itself.”  The three judges all questioned why they should overrule their earlier decisions.