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Lands Council v. McNair

Citation: 41 ELR 20057
No. Nos. 09-35729, -35753, (9th Cir., 12/28/2010) aff'd

The Ninth Circuit held that BLM and the U.S. Forest Service did not violate the CWA, NEPA, or the National Forest Management Act (NFMA) in approving a proposed mine expansion project in the Caribou National Forest. After evaluating the data, the agencies determined that remediation efforts would be sufficient to offset selenium from the expansion. Because this is a rational conclusion from the facts found, neither the CWA nor the NFMA required the agencies to identify further any other possible source of pollution. In addition, the agencies complied with NEPA’s procedural requirements by fully evaluating the environmental impacts of the mine and disclosing those results to the public. Nor was the mine required to obtain a §401 certification under the CWA. The §401 certification requirement applies only to discharges from point sources, and the mining pits at issue here do not qualify as a point source since they are protected by a cover designed to divert water away from the pits. The lower court, therefore, properly granted summary judgment to the agencies.