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Eastern Oregon Mining Ass'n v. Department of Environmental Quality

ELR Citation: 49 ELR 20123
Nos. 46, (Or., 07/25/2019)

The Oregon Supreme Court upheld the Department of Environmental Quality's issuance of a permit for the discharge of certain pollutants resulting from suction dredge mining. A mining association argued that because suction dredge mining did not add anything to navigable waters that was not already there, there was no "addition" of any pollutant and thus no discharge of a pollutant for EPA and the Department to permit. The high court found the Agency reasonably concluded that the suspension of solids and remobilization of heavy metals resulting from suction dredge mining constituted the addition of a pollutant that required a permit under the CWA. The association also argued that, even if suction dredge mining added pollutants to navigable waters, the material discharged constituted dredged material over which the U.S. Army Corps of Engineers had exclusive permitting authority. The court found that EPA and the Corps reasonably concluded that permits for the discharge of material resulting from suction dredge mining should be issued by EPA under CWA §402 rather than by the Corps under CWA §404. It therefore upheld the permit.