Suction Dredgers Appeal to Supreme Court
Updated: Jan 8, 2020
The Eastern Oregon Mining Association has appealed a decision by the Oregon Supreme Court holding that suction gold dredging was subject to NPDES permitting requirements. The cert. petition focuses on whether there is an "addition of pollutants," since the miners are not importing any pollutants from outside of the river; they're merely picking up river sediment and depositing it. The CWA defines pollutant to include dredge spoils, and dredging up river bottom involves the discharge of dredge spoils, although EPA and Corps have agreed that suction dredge discharges are regulated under section 402, not 404. But the "addition to" requirement is the same. This is also an important concept for some wetlands cases. If an owner digs trenches to drain the wetland, typically the spoils deposited to the side of the trench are considered a discharge. Clearing wetlands vegetation into hedge rows within the wetland yields the same result. Large-scale dredging of harbors and river channels are now subject to 404 permitting, but may not be if SCOTUS buys the Oregon Miners' arguments. This is a case to watch.
Here is a link to the cert. petition. https://www.supremecourt.gov/DocketPDF/19/19-839/127403/20200103112446607_KITCHAR%20v.%20DEQ%20CERT%20PET%20-%20FINAL.pdf