PART 1: ARMY CORPS OFFICIAL FINDING & WARNING 1 Author(s): - - PowerPoint PPT Presentation

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PART 1:

ARMY CORPS OFFICIAL FINDING & WARNING

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• Author(s): US Army Corps of Engineers
• Title: Special Public Notice 94-10
• Source: US Army Corps of Engineers, SPN 9410,
• Sept. 13, 1994
• Purpose: To show the finding of de minimis

(inconsequential) effects on aquatic resources for 4-inch and less suction dredges and hand mining.

• Method(s): results of field studies and court

decisions

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• Conclusion(s): Four-inch and smaller dredges

have inconsequential effects on aquatic resources.

• “This is an official recognition of what suction

dredgers have long claimed; that below a certain size, the effects of suction dredging are so small and so short-term as to not warrant the reg- ulations being imposed in many cases. The U.S. Environmental Protection Agency (EPA), has ignored this concept, although numerous studies, including the EPA's own 1999 study of suction dredging, repeatedly and consistently support the Corps finding de minimis effects.”

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• “The reports consistently find no actual

impact of consequence on the environ- ment, and so almost always fall back to the position that potential for impact

• exists. Studies to date have not shown

any actual effect on the environment by suction dredging, except for dredges of larger than 4 inches generally has more than de minimis effects on the aquatic environment and therefore requires authorization.”

THE ARMY CORPS WARNS:

"The regulatory agencies should be consistently and continually challenged by the dredging community to produce sound, scientific evidence that support their proposed regulations. To regulate against a potential for harm, where none has been shown to exist,

is unjustifiable and must be challenged."

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PART 2:

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AN EXAMINATION OF THE

CLEAN WATER ACT

IN RELATION TO IN-STREAM SMALL SCALE PLACER MINING DISCHARGES

S E C T I O N 4 2

(EPA - NPDES) v s .

S E C T I O N 4 4

(USACE) WH I C H I S C O R R E C T ?

I L L I NO I S R I V E R , J O S E P H I NE C O UNT Y , O R E G O N

THE NATIONAL WILD & SCENIC ILLINOIS RIVER (“SCENIC” SEGMENT). THIS PICTURE WAS TAKEN LESS THAN 500 FEET UPSTREAM FROM THE MOUTH OF JOSEPHINE CREEK, THE SITE OF THE 1ST GOLD DISCOVERY IN OREGON. THE AREA HAS BEEN MINED ALMOST CONTINUOUSLY SINCE

• 1851. EVERY ROCK IN THE PHOTO HAS BEEN MOVED… SEVERAL TIMES.

THERE ARE AT LEAST 5 SMALL SUCTION DREDGES IN THE PHOTO.

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OVERVIEW OVERVIEW

• Since at least the 1990’s, DEQ and the EPA

have insisted that the discharge from small-scale suction dredge mining operations fall under the authority of Section 402 of the Clean Water Act . . .

• . . . And at least since 2004, Oregon

miners have insisted that Section 402 does not apply . . .

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In 2005, DEQ adopted a new permit for suction dredge mining in Oregon . . .

GENERL PERMIT, “700PM”.

This permit was issued pursuant to ORS 468B.050 and Section 402

• f The Federal Clean Water Act.

Two challenges were filed against the 2005 permit,

• 1. From a group of environmental organizations

(NEDC et. al); and

• 2. From a mining association (EOMA).

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On December 23, 2009, the Oregon Court of Appeals ruled that:

• 1. “…the discharge of dredged material

is within the exclusive regulatory authority

• f the Corps . . .”
• 2. “. . . the EPA lacks authority to permit those

discharges, and, by extension, EQC does not have authority to permit those discharges through its state implementation

• f the NPDES program.” (Emphasis added)

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• 3. “. . . small suction dredge mining

typically involves the placement

• f dredged spoil and mining

tailings in piles . . .”, and

• 4. the “. . . discharge of dredged

material."

• 5. “Such discharges are regulated

exclusively by the Corps under section 404, and not the EPA.”

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However, in summary, the court stated: “. . . small suction dredge mining involves discharges of . . . . . . dredged material that are permitted by the Corps and . . . . . . discharges of turbid wastewater that are permitted by the EPA.”

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THIS RAISES THE QUESTION . . . THIS RAISES THE QUESTION . . .

• Can both 402 and 404 permitting

be required for the single source discharge?

• According to the Oregon court . . .

YES.

• However, according to the U.S.

Supreme Court . . . NO.

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ACCORDING TO THE ACCORDING TO THE U.S. SUPREME COURT IN JUNE, 2009*: U.S. SUPREME COURT IN JUNE, 2009*:

“… “…a two-permit regime is contrary to a two-permit regime is contrary to the statute and the regulations the statute and the regulations.” .”

Therefore, a discharge of fill (dredged) Therefore, a discharge of fill (dredged) material requires a 404 permit only, material requires a 404 permit only, not an NPDES permit under 402. not an NPDES permit under 402. * * Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

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WHAT DOES THE LAW SAY? WHAT DOES THE LAW SAY?

Title 40: Protection of Environment Title 40: Protection of Environment PART 122—EPA ADMINISTERED PERMIT PROGRAMS: PART 122—EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM Subpart A—Definitions and General Program Requirements Subpart A—Definitions and General Program Requirements

§ 122.3 Exclusions. § 122.3 Exclusions.

The following discharges The following discharges do not do not require NPDES permits: require NPDES permits: (b) Discharges of

(b) Discharges of dredged or fill material dredged or fill material into waters of the United States into waters of the United States which are which are regulated under section 404 of CWA regulated under section 404 of CWA. .

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THE OREGON APPEALS THE OREGON APPEALS COURT STATED: COURT STATED:

“ “In the case of small suction dredges… In the case of small suction dredges… sediment and sediment and water are sucked up water are sucked up by a machine and everything by a machine and everything that is not being kept by the miner is that is not being kept by the miner is then discharged then discharged

• r added back to the water
• r added back to the water…”

…” (as a re-deposit only, NOT

(as a re-deposit only, NOT AS AN “ADDITION”) AS AN “ADDITION”).

.

Therefore, in the case of suction dredge discharges, Therefore, in the case of suction dredge discharges, the the “dredged material” “dredged material” consists entirely of: consists entirely of: 1)

1) sediment sediment, , and

and 2)

2) water water

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 The rocks, gravel, and sand sucked up

The rocks, gravel, and sand sucked up by a suction dredge are all by a suction dredge are all “dredged “dredged material” material”. .

 The finer sediment that stays in

The finer sediment that stays in suspension is also suspension is also “dredged material” “dredged material”; ; in that in that its source is the streambed its source is the streambed, not , not the dredge. the dredge.

 The water going through a suction

The water going through a suction dredge and discharged back into the dredge and discharged back into the stream is also stream is also “dredged material” “dredged material”. .

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 It is important to note that any turbidity in

It is important to note that any turbidity in relation to suction dredge operations is caused relation to suction dredge operations is caused by the movement and excavation of the by the movement and excavation of the streambed material. streambed material.

 The water entering the nozzle of a suction

The water entering the nozzle of a suction dredge is already turbid, and contains 100% of dredge is already turbid, and contains 100% of the turbidity causing particals. the turbidity causing particals.

 No physical part of the suction dredge itself

No physical part of the suction dredge itself causes or creates any (i.e., zero) additional causes or creates any (i.e., zero) additional turbidity. turbidity.

 It is the movement of streambed material that

It is the movement of streambed material that causes turbidity, not method used. causes turbidity, not method used.

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THE U.S. ARMY CORPS OF ENGINEERS THE U.S. ARMY CORPS OF ENGINEERS REGULATES AND PERMITS SUCTION REGULATES AND PERMITS SUCTION DREDGE DISCHARGES DREDGE DISCHARGES

 The U.S. Army Corps has officially declared the effects and

The U.S. Army Corps has officially declared the effects and discharges from four (4) inch suction dredges (and smaller) discharges from four (4) inch suction dredges (and smaller) as as “de minimus” “de minimus” *, and exempt from needing a 404 permit. *, and exempt from needing a 404 permit.

 The Corps requires Individual 404 permits for suction

The Corps requires Individual 404 permits for suction dredges using hoses larger than 4” (I.D.) dredges using hoses larger than 4” (I.D.)

* *US Army Corps of Engineers, SPN 9410, Sept. 13, 1994 US Army Corps of Engineers, SPN 9410, Sept. 13, 1994

In order for the Corps to exempt certain size dredges they must first have In order for the Corps to exempt certain size dredges they must first have the authority to regulate their use. Just because the Corps exempts these the authority to regulate their use. Just because the Corps exempts these

• perations does not mean they can be regulated by the EPA.
• perations does not mean they can be regulated by the EPA.

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IN CONCLUSION: IN CONCLUSION:

• All small scale placer operations that

All small scale placer operations that

• ccur within the ordinary high water
• ccur within the ordinary high water

mark of waters within the State of mark of waters within the State of Oregon normally include some kind of Oregon normally include some kind of movement of the stream bed strata movement of the stream bed strata and and redeposit of that strata by the use of a redeposit of that strata by the use of a suction dredge, highbanker, sluicebox, suction dredge, highbanker, sluicebox, rocker, or gold pan, etc.. rocker, or gold pan, etc..

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• All of the above operations fall within the

All of the above operations fall within the jurisdiction of the Army Corps and DSL in jurisdiction of the Army Corps and DSL in the form of a 404 permit and/or a DSL the form of a 404 permit and/or a DSL removal/fill permit. removal/fill permit. This could be in the form

This could be in the form

• f a General Permit or an Individual Permit,
• f a General Permit or an Individual Permit,

depending on the scale of the operation. depending on the scale of the operation.

• All are available at this point in time.

All are available at this point in time.

• Some or all of these permits require 401

Some or all of these permits require 401 certification by ODEQ. certification by ODEQ.

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“ “a two-permit regime a two-permit regime

(pursuant to the CWA) (pursuant to the CWA)

is contrary to the statute is contrary to the statute and the regulations and the regulations.” .” * * * * Coeur Alaska, Inc. v. Southeast Alaska Conservation Council

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council U.S. Supreme Court, June, 2009 U.S. Supreme Court, June, 2009

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THEREFORE . . . THEREFORE . . .

• DEQ & EPA have no authority or

DEQ & EPA have no authority or standing to require a 402 NPDES standing to require a 402 NPDES permit involving suction dredge or permit involving suction dredge or non-motorized in-stream placer non-motorized in-stream placer

• perations.
• perations.

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A NOTE ON TURBIDITY A NOTE ON TURBIDITY AND 401 CERTIFICATION: AND 401 CERTIFICATION:

 OAR 340-041-0036

OAR 340-041-0036

 Turbidity

Turbidity

 Turbidity (Nephelometric Turbidity Units, NTU): No more

Turbidity (Nephelometric Turbidity Units, NTU): No more than a ten percent cumulative increase in natural stream than a ten percent cumulative increase in natural stream turbidities may be allowed, as measured relative to a control turbidities may be allowed, as measured relative to a control point immediately upstream of the turbidity causing activity. point immediately upstream of the turbidity causing activity. However, limited duration activities necessary However, limited duration activities necessary to address an to address an emergency or emergency or to accommodate essential dredging to accommodate essential dredging, , construction construction or other legitimate activities and which cause

• r other legitimate activities and which cause

the standard to be exceeded may be authorized provided the standard to be exceeded may be authorized provided all practicable turbidity control techniques have been all practicable turbidity control techniques have been applied applied and one of the following has been granted and one of the following has been granted: :

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(1) Emergency activities: Approval coordinated by the Department with the Oregon (1) Emergency activities: Approval coordinated by the Department with the Oregon Department of Fish and Wildlife under conditions they may prescribe to Department of Fish and Wildlife under conditions they may prescribe to accommodate response to emergencies or to protect public health and welfare; accommodate response to emergencies or to protect public health and welfare;

(2) Dredging (2) Dredging, , Construction Construction or

• r
• ther Legitimate
• ther Legitimate

Activities: Permit or certification authorized Activities: Permit or certification authorized under terms of section 401 or 404 (Permits and under terms of section 401 or 404 (Permits and Licenses, Federal Water Pollution Control Act) or Licenses, Federal Water Pollution Control Act) or OAR 14l-085-0100 et seq. (Removal and Fill OAR 14l-085-0100 et seq. (Removal and Fill Permits, Division of State Lands), with limitations Permits, Division of State Lands), with limitations and conditions governing the activity set forth in and conditions governing the activity set forth in the permit or certificate. the permit or certificate.

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• Stat. Auth.: ORS 468.020, 468B.030, 468B.035 & 468B.048
• Stat. Auth.: ORS 468.020, 468B.030, 468B.035 & 468B.048
• Stats. Implemented: ORS 468B.030, 468B.035 & 468B.048
• Stats. Implemented: ORS 468B.030, 468B.035 & 468B.048

Hist.: DEQ 17-2003, f. & cert. ef. 12-9-03 Hist.: DEQ 17-2003, f. & cert. ef. 12-9-03

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July 18, 2007 July 18, 2007 SUBJECT: 401 WATER QUALITY CERTIFICATION FOR SUBJECT: 401 WATER QUALITY CERTIFICATION FOR 2007 NATIONWIDE PERMIT PROGRAM 2007 NATIONWIDE PERMIT PROGRAM Author: ODEQ Author: ODEQ

Appendix: Appendix: General Conditions General Conditions

• 1. (b) Compliance: Results from the com-
• 1. (b) Compliance: Results from the com-

pliance points should be compared to pliance points should be compared to the background levels taken during the background levels taken during each monitoring interval. each monitoring interval. Exceedances are allowed as follows: Exceedances are allowed as follows:

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MONITORING WITH A TURBIDIMETER MONITORING WITH A TURBIDIMETER

ALLOWABLE EXCEEDANCE ACTION REQUIRED AT lst ACTION REQUIRED AT 2nd ALLOWABLE EXCEEDANCE ACTION REQUIRED AT lst ACTION REQUIRED AT 2nd TURBIDITY LEVEL MONITORING INTERVAL MONITORING INTERVAL TURBIDITY LEVEL MONITORING INTERVAL MONITORING INTERVAL 0 to 5 NTU above background Continue to monitor every 4 hours Continue to monitor every 4 0 to 5 NTU above background Continue to monitor every 4 hours Continue to monitor every 4 hours hours 5 to 29 NTU above background Modify BMPs & continue to monitor Stop work after 8 hours at 5 to 29 NTU above background Modify BMPs & continue to monitor Stop work after 8 hours at every 4 hours 5-29NTU above background every 4 hours 5-29NTU above background 30 to 49 NTU above Modify BMPs & continue to Stop work after 2 hours at 30- 30 to 49 NTU above Modify BMPs & continue to Stop work after 2 hours at 30- 49 49 Background monitor every 2 hours NTU above background Background monitor every 2 hours NTU above background 50 NTU or more above Stop work Stop work 50 NTU or more above Stop work Stop work Background Background

VISUAL MONITORING VISUAL MONITORING

No plume observed Continue to monitor every 4 hours Continue to monitor every No plume observed Continue to monitor every 4 hours Continue to monitor every 4 4 hours hours Plume observed Modify BMPs & continue to monitor Plume observed Modify BMPs & continue to monitor Stop work after 8 hours with Stop work after 8 hours with an an every 4 hours every 4 hours observed plume

• bserved plume

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IN-STREAM MINING IS A IN-STREAM MINING IS A LEGITIMATE ACTIVITY LEGITIMATE ACTIVITY

 ORS 541.110

ORS 541.110

• Use of water to develop mineral resources and
• Use of water to develop mineral resources and

furnish power. furnish power.

The use of the water

The use of the water of the lakes and running streams of Oregon for

• f the lakes and running streams of Oregon for

the purpose of the purpose of developing the mineral resources developing the mineral resources of the state . . .

• f the state . . .

. . . is declared to be a public and beneficial use . . . is declared to be a public and beneficial use and a public necessity. and a public necessity. . . . Subject to the provisions of the Water Rights Act (as defined in . . . Subject to the provisions of the Water Rights Act (as defined in ORS 537.010), the right to divert unappropriated waters of any ORS 537.010), the right to divert unappropriated waters of any such lakes or streams for such public and beneficial use is such lakes or streams for such public and beneficial use is granted." granted."

(From H.B. 362 - Oregon Laws, 1899)

(From H.B. 362 - Oregon Laws, 1899)

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 Small-scale in-stream placer mining

Small-scale in-stream placer mining methods in use today mirror those in use in methods in use today mirror those in use in 1899, and some date back over 5,000 years. 1899, and some date back over 5,000 years.

 When the legislature passed the 1899 Act, it

When the legislature passed the 1899 Act, it knew that such uses of the waters for the knew that such uses of the waters for the development of mineral resources included development of mineral resources included such methods as gold panning, rocking, and such methods as gold panning, rocking, and sluicing sluicing (for these purposes, a suction dredge is a sluice

(for these purposes, a suction dredge is a sluice box with a water vacuum excavation and delivery system). box with a water vacuum excavation and delivery system).

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When the legislature passed the 1899 Act, it When the legislature passed the 1899 Act, it knew that such uses of the waters for placer knew that such uses of the waters for placer mining, including “in-stream” mining, mining, including “in-stream” mining, involved a discharge of streambed sediment involved a discharge of streambed sediment and water, usually right back into the and water, usually right back into the stream it came out of. stream it came out of. The 1899 legislature The 1899 legislature knew such activities would cause turbidity . . . knew such activities would cause turbidity . . . . . . And yet, they declared such use to be a . . . And yet, they declared such use to be a public and beneficial use public and beneficial use and a public necessity. and a public necessity.

(ORS 541.110) (ORS 541.110)

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COMPARISION: “DREDGE” vs “4 INCH SUCTION DREDGE”

4” SUCTION DREDGE

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Waterline

COMPONENTS OF A TYPICAL 4” SUCTION DREDGE

• 1. FLOAT/S
• 2. ENGINE
• 3. AIR COMP-

RESSOR

• 4. SUCTION

HOSE

• 5. POWER JET
• 6. NOZZLE &

RESTRICTOR RING

• 7. PUMP
• 8. FOOT VALVE

& SCREEN

• 9. PUMP

INTAKE HOSE

• 10. SLUICEBOX
• 11. RIFFLES

6. 1. 2. 3. 5. 7. 8. 9. 10. 11. 4.

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D E A C B

ALTHOUSE CK., “BEFORE” DREDGING (Photo taken July 4, 2004) SITE OF DREDGE DEMONSTRATION FOR DEQ AUGUST, 2004.

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ALTHOUSE CK., “DURING” DREDGING (Photo taken 9/31, ‘04)

Photo taken during a demonstration of suction dredging for Forest Service personnel.

A B C

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ALTHOUSE CK., “AFTER” DREDGING (Photo taken Feb. 7, 2005) (NOTE: Area dredged marked with yellow dashed line)

D A C E B

37 THE ALTERNATIVE TO MODERN SUCTION DREDGE MINING . . .

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GOLD NUGGETS FOUND IN THE 1990’S IN SW OREGON