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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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Presentation Transcript
slide2

The CWA generally

requires a permit for:

  • any discharge (addition),
  • of a pollutant,
  • into waters of the United

States.

slide3

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.

slide4

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.

section 404
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”

section 402
SECTION 402

NPDES PERMITS ARE REQUIRED FOR:

  • any discharge (addition),
  • of a pollutant,
  • from a point source,
  • into waters of the United

States.

slide7

THE COURTS HAVE RULED

THAT ALL FIVE

OF THESE FACTORS

MUST BE PRESENT

FOR NPDES TO APPLY

slide8

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”

slide9

SUCTION DREDGES DO NOT “ADD” POLLUTANTS . . .

BUT INSTEAD SAFELY REMOVE MOST HEAVY POLLUTANTS ALREADY IN THE WATER –

AT NO COST TO THE PUBLIC!

slide10

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”?

congressional intent of the clean water act
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.

33 usc 1370 water pollution prevention and control
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 …

33 usc 1370 cont
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.

slide14

Typical 4 inch

suction dredge