Transcript Document

THE CLEAN WATER ACT
&
SUCTION DREDGE MINING
1
The CWA generally
requires a permit for:
 any discharge (addition),
 of a pollutant,
 into waters of the United
States.
2
The CWA contains two primary permitting
schemes for these discharges; they are:
1. Section 404 permitting by the U.S. Army
Corps of Engineers for:
…the discharge of dredged
or fill material;
or
2. Section 402 “NPDES” permitting issued by
the EPA for:
…all other discharges
not under § 404 authority.
3
Each of these permit schemes are
mutually exclusive of the other.
Under the CWA, a single discharge
into waters of the United States
requires either a 404 permit,
or a 402 permit, but not both.
4
SECTION 404
Requires permits for such activities as:
 navigational dredging,
 in-water construction, and
 discharges that act as fill…
…with the exception of “incidental fallbck”
5
SECTION 402
NPDES PERMITS ARE REQUIRED FOR:
 any discharge (addition),
 of a pollutant,
 from a point source,
 into waters of the United
States.
6
THE COURTS HAVE RULED
THAT ALL FIVE
OF THESE FACTORS
MUST BE PRESENT
FOR NPDES TO APPLY
7
THE U.S. SUPREME COURT HAS RULED THAT “ADDITION” MEANS:
“FROM THE OUTSIDE WORLD.”
100% OF THE DISCHARGE FROM A
SUCTION DREDGE IS MATERIAL
ALREADY PRESENT IN THE WATER.
THERE IS NO “ADDITION”
8
SUCTION DREDGES DO NOT “ADD”
POLLUTANTS . . .
BUT INSTEAD SAFELY REMOVE
MOST HEAVY POLLUTANTS
ALREADY IN THE WATER –
AT NO COST TO THE PUBLIC!
9
SECTION 402 ONLY APPLIES TO
“WATERS OF THE UNITED STATES”;
(DEFINED BY THE EPA AS
THE NAVIGABLE WATERS
AT THE TIME OF STATEHOOD.)
Q: ARE ALL WATERS IN IDAHO
“WATERS OF THE UNITED STATES”?
10
CONGRESSIONAL INTENT OF THE CLEAN WATER ACT
• Senator Muskie explained that:
“. . . the bill tries to free from the threat of
regulation those kinds of manmade activities
which are sufficiently de minimis as to merit
general attention at the State and local level and
little or no attention at the national level."
Senate Report on S. 1952, 95th Cong., reprinted in 1977
Legis.Hist. at 645.
11
33 USC 1370:
WATER POLLUTION PREVENTION
AND CONTROL
Except as expressly provided in this chapter, nothing in this chapter shall
(1)
preclude or deny the right of any State or
political subdivision thereof or interstate
agency to adopt or enforce
(A)
any standard or limitation respecting
discharges of pollutants, or
(B) any requirement respecting control or
abatement of pollution… which is less stringent than the effluent limitation, or other limitation, effluent
standard, prohibition, pretreatment standard, or standard of performance under this chapter; or …
12
33 USC 1370
(cont.)
(2) be construed as impairing
or in any manner affecting any right
or jurisdiction of the States
with respect to the waters (including boundary waters) of such States.
13
Typical 4 inch
suction dredge
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