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T HE C LEAN W ATER A CT & S UCTION D REDGE M INING

T HE C LEAN W ATER A CT & S UCTION D REDGE M INING. The CWA generally requires a permit for: any discharge (addition), of a pollutant, into waters of the United States. The CWA contains two primary permitting schemes for these discharges; they are:

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T HE C LEAN W ATER A CT & S UCTION D REDGE M INING

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  1. THE CLEAN WATER ACT&SUCTION DREDGE MINING

  2. The CWA generally requires a permit for: • any discharge (addition), • of a pollutant, • into waters of the United States.

  3. The CWA contains two primary permitting schemes for these discharges; they are: • Section 404 permitting by the U.S. Army Corps of Engineers for: …the discharge of dredged or fill material; or • Section 402 “NPDES” permitting issued by the EPA for: …all other discharges not under § 404 authority.

  4. 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.

  5. 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”

  6. SECTION 402 NPDES PERMITS ARE REQUIRED FOR: • any discharge (addition), • of a pollutant, • from a point source, • into waters of the United States.

  7. THE COURTS HAVE RULED THAT ALL FIVE OF THESE FACTORS MUST BE PRESENT FOR NPDES TO APPLY

  8. 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”

  9. SUCTION DREDGES DO NOT “ADD” POLLUTANTS . . . BUT INSTEAD SAFELY REMOVE MOST HEAVY POLLUTANTS ALREADY IN THE WATER – AT NO COST TO THE PUBLIC!

  10. 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”?

  11. 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.

  12. 33 USC 1370:WATER POLLUTION PREVENTION AND CONTROL Except as expressly provided in this chapter, nothing in this chapter shall • preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce • 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 …

  13. 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.

  14. Typical 4 inch suction dredge

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