Oregon NPDES appeal to state supreme court March 03, 2016
http://www.waldominingdistrict.org/...MA-SCTOR-mootness-brief-3-3-16_w-ER_Final.pdf
EOMA/WMD v. DEQ
For the 2nd time in ten years of litigation the Oregon courts have seen fit to declare our ongoing (since 2005) challenge to DEQ’s 700PM permit (required for suction dredge mining in Oregon) dismissed as moot. Our latest challenge was filed in 2010, and just before a hearing in the Court of Appeals the 2010 permit expired and was replaced by the 2015 700PM permit . . . and we were (once again) declared moot and dismissed (the court even had the ____ to invite us to file a new (3rd) challenge to the new permit).
On Thursday, March 3rd, 2016, EOMA/WMD et al. filed a brief in the Oregon Supreme Court arguing that the Oregon Court of Appeals decision on Aug. 19, 2015, declaring our case moot was wrong, that we are not moot . . . and deserve to be heard.
We ask that the court reverse the Court of Appeals judgment (that we are moot), and that this case be remanded to that court with instructions to reach the merits.
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BACKGROUND: Back in 2005, right after Oregon DEQ issued their new 700-PM permit for suction dredge mining, a coalition of 3 environmental organizations (NEDC et al.) filed a challenge against the new permit in the Oregon Court of Appeals claiming among other things that the new permit wasn’t restrictive enough. Shortly thereafter, the Eastern Oregon Mining Association (EOMA) filed to intervene in the NEDC challenge, and, filed a challenge of their own against the permit; claiming it was the wrong permit in the first place.
EXPLANATION: DEQ’s suction dredge permits (i.e.; the earlier 700-J and the 700-PM) are issued in part under an agreement with the U.S. Environmental Protection Agency (EPA) pursuant to Section 402 of the federal Clean Water Act (CWA) and are “National Pollutant Discharge Elimination System” (NPDES) permits. These types of CWA permits are required for any discharge from a point source that causes an “addition” of “pollutants” to the “waters of the United States”; and are typically required for such facilities as municipal sewage treatment plants and other large-scale industrial plants that discharge into waters.
However, under the CWA, the U.S. Army Corps of Engineers (USACE) has jurisdiction over the discharge of “dredged materials” through their Section 404 permitting program. Add to this, the CWA clearly states that if one is permitted by or under the jurisdiction of the USACE, no EPA Section 402 NPDES permit is required (i.e.; one or the other, but not both). This concept was most recently decided in June of 2009 by the U.S. Supreme Court when they ruled in the case of COEUR ALASKA, INC. v. SOUTHEAST ALASKA CONSERVATION COUNCIL (Nos. 07-984 and 07-990) 486 F. 3d 638:
“…a two-permit regime is contrary to the statute and the regulations.”
So which is the legally correct permit? We believe that if the discharge from a suction dredge or other forms of in-stream mining even falls under the CWA (which is doubtful), then it would be under the jurisdiction of the USACE, and not the EPA; for the following reasons:
1. There is no “addition” of anything. 100% of everything being discharged by a suction dredge is already present in the water. The courts have consistently ruled that for a discharge to be an “addition”, it must come from an outside source (such an onshore operation discharging into the water). Nor does the dredge change, in any way, the bottom sediments passed through the dredge (i.e.; the dredge does not cause the turbidity – the turbidity is caused by the movement of the streambed material and is present before the material and water even enter the intake nozzle).
2. Streambed sediments, when returned to the stream they came from, are not “pollutants”. \
3. Many if not most all small streams, creeks, gulches, etc. are not “waters of the United States” but instead are waters of the State of Oregon.
THE 2009 COURT OF APPEAL RULING: On December 23, 2009, the Oregon Court of Appeals ruled on EOMA’s challenge to the 2005 700-PM permit in EOMA’s favor. The court declared the permit invalid, because it did not specify what discharge was being permitted by the permit. The court stated that the discharge from suction dredges consisted of streambed sediments, and water. The court stated that discharges of streambed sediments were under the jurisdiction of the Army Corp, not the EPA . . .
And then they defied all logic (and the U.S. Supreme Court June 2009 ruling) and said that suction dredges also discharged turbid wastewater, and those discharges were under the jurisdiction of the EPA! The court ended by saying that suction dredging needed both a 402 and a 404 permit!
EOMA promptly filed a Motion for Reconsideration, which was promptly denied. EOMA then filed a petition for review of the Appeals Court decision with the Oregon Supreme Court. On September 17, 2010, the Oregon Supreme Court agreed to hear the EOMA appeal (and, unfortunately, the NEDC appeal too); with briefs due in a matter of weeks, and a hearing scheduled for mid-January 2011.
However, on September 27, 2010, the State filed a Motion to Dismiss the EOMA & NEDC appeals on the grounds that the 2005 700-PM permit had expired and had been replaced, making all appeals moot. EOMA then filed arguments against the State’s motion to dismiss. At this time, we are waiting to hear from the court to see if they will dismiss the case, or not.
MINERS CHALLENGE THE NEW 2010 700-PM PERMIT: On September 27, 2010, the Waldo Mining District (WMD) et al. filed a petition in the Oregon Court of Appeals challenging the new 700-PM permit on the grounds that it too is another NPDES permit. On the same day, EOMA et al. filed a petition in the Circuit Court of Baker County challenging the new 700-PM permit on the grounds that it is a NPDES permit; that DEQ failed to properly consult with the affected parties while drafting the permit as required by state law; that DEQ failed to recognize the use of water for mining is both a beneficial use and a public necessity, and that such use is “granted” (under state law); plus several other reasons.
http://www.waldominingdistrict.org/...MA-SCTOR-mootness-brief-3-3-16_w-ER_Final.pdf
EOMA/WMD v. DEQ
For the 2nd time in ten years of litigation the Oregon courts have seen fit to declare our ongoing (since 2005) challenge to DEQ’s 700PM permit (required for suction dredge mining in Oregon) dismissed as moot. Our latest challenge was filed in 2010, and just before a hearing in the Court of Appeals the 2010 permit expired and was replaced by the 2015 700PM permit . . . and we were (once again) declared moot and dismissed (the court even had the ____ to invite us to file a new (3rd) challenge to the new permit).
On Thursday, March 3rd, 2016, EOMA/WMD et al. filed a brief in the Oregon Supreme Court arguing that the Oregon Court of Appeals decision on Aug. 19, 2015, declaring our case moot was wrong, that we are not moot . . . and deserve to be heard.
We ask that the court reverse the Court of Appeals judgment (that we are moot), and that this case be remanded to that court with instructions to reach the merits.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
BACKGROUND: Back in 2005, right after Oregon DEQ issued their new 700-PM permit for suction dredge mining, a coalition of 3 environmental organizations (NEDC et al.) filed a challenge against the new permit in the Oregon Court of Appeals claiming among other things that the new permit wasn’t restrictive enough. Shortly thereafter, the Eastern Oregon Mining Association (EOMA) filed to intervene in the NEDC challenge, and, filed a challenge of their own against the permit; claiming it was the wrong permit in the first place.
EXPLANATION: DEQ’s suction dredge permits (i.e.; the earlier 700-J and the 700-PM) are issued in part under an agreement with the U.S. Environmental Protection Agency (EPA) pursuant to Section 402 of the federal Clean Water Act (CWA) and are “National Pollutant Discharge Elimination System” (NPDES) permits. These types of CWA permits are required for any discharge from a point source that causes an “addition” of “pollutants” to the “waters of the United States”; and are typically required for such facilities as municipal sewage treatment plants and other large-scale industrial plants that discharge into waters.
However, under the CWA, the U.S. Army Corps of Engineers (USACE) has jurisdiction over the discharge of “dredged materials” through their Section 404 permitting program. Add to this, the CWA clearly states that if one is permitted by or under the jurisdiction of the USACE, no EPA Section 402 NPDES permit is required (i.e.; one or the other, but not both). This concept was most recently decided in June of 2009 by the U.S. Supreme Court when they ruled in the case of COEUR ALASKA, INC. v. SOUTHEAST ALASKA CONSERVATION COUNCIL (Nos. 07-984 and 07-990) 486 F. 3d 638:
“…a two-permit regime is contrary to the statute and the regulations.”
So which is the legally correct permit? We believe that if the discharge from a suction dredge or other forms of in-stream mining even falls under the CWA (which is doubtful), then it would be under the jurisdiction of the USACE, and not the EPA; for the following reasons:
1. There is no “addition” of anything. 100% of everything being discharged by a suction dredge is already present in the water. The courts have consistently ruled that for a discharge to be an “addition”, it must come from an outside source (such an onshore operation discharging into the water). Nor does the dredge change, in any way, the bottom sediments passed through the dredge (i.e.; the dredge does not cause the turbidity – the turbidity is caused by the movement of the streambed material and is present before the material and water even enter the intake nozzle).
2. Streambed sediments, when returned to the stream they came from, are not “pollutants”. \
3. Many if not most all small streams, creeks, gulches, etc. are not “waters of the United States” but instead are waters of the State of Oregon.
THE 2009 COURT OF APPEAL RULING: On December 23, 2009, the Oregon Court of Appeals ruled on EOMA’s challenge to the 2005 700-PM permit in EOMA’s favor. The court declared the permit invalid, because it did not specify what discharge was being permitted by the permit. The court stated that the discharge from suction dredges consisted of streambed sediments, and water. The court stated that discharges of streambed sediments were under the jurisdiction of the Army Corp, not the EPA . . .
And then they defied all logic (and the U.S. Supreme Court June 2009 ruling) and said that suction dredges also discharged turbid wastewater, and those discharges were under the jurisdiction of the EPA! The court ended by saying that suction dredging needed both a 402 and a 404 permit!
EOMA promptly filed a Motion for Reconsideration, which was promptly denied. EOMA then filed a petition for review of the Appeals Court decision with the Oregon Supreme Court. On September 17, 2010, the Oregon Supreme Court agreed to hear the EOMA appeal (and, unfortunately, the NEDC appeal too); with briefs due in a matter of weeks, and a hearing scheduled for mid-January 2011.
However, on September 27, 2010, the State filed a Motion to Dismiss the EOMA & NEDC appeals on the grounds that the 2005 700-PM permit had expired and had been replaced, making all appeals moot. EOMA then filed arguments against the State’s motion to dismiss. At this time, we are waiting to hear from the court to see if they will dismiss the case, or not.
MINERS CHALLENGE THE NEW 2010 700-PM PERMIT: On September 27, 2010, the Waldo Mining District (WMD) et al. filed a petition in the Oregon Court of Appeals challenging the new 700-PM permit on the grounds that it too is another NPDES permit. On the same day, EOMA et al. filed a petition in the Circuit Court of Baker County challenging the new 700-PM permit on the grounds that it is a NPDES permit; that DEQ failed to properly consult with the affected parties while drafting the permit as required by state law; that DEQ failed to recognize the use of water for mining is both a beneficial use and a public necessity, and that such use is “granted” (under state law); plus several other reasons.
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