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!

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. 

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.