By Becca Fischer, Law Clerk
On March 27, 2015, the Oregon Department of Environmental Quality (DEQ) issued a revised water quality permit for wastewater discharges from small-scale suction dredge mining operations used to recover precious metals and minerals from streambed sediments. The Northwest Environmental Defense Center and collaborating organizations have worked hard to improve the terms of this 700PM National Pollutant Discharge Elimination System (NPDES) general permit to ensure it protects Oregon’s high quality waters and the uses that depends on them.
|Photo: Oregon Wild, www.oregonwild.org|
Suction dredge mining poses significant risks to Oregon's natural resources
Suction dredge mining can hurt salmon, bull trout and other important aquatic life that depend on clean water. Mining stirs up sediment and destabilizes the streambed where fish lay their eggs. The dredges can also harm fish eggs through entrainment on the dredge and destabilizing spawning areas. Although there are some restrictions on mining to prevent such impacts (e.g., suction dredging is not allowed during times of the year when fish are known to spawn), dredging can still overlap with some spawning, and enforcement is difficult in rural areas. Mining can also impact mussels, lampreys and generally damage the species at the base of the aquatic food chain including beneficial insects such as mayflies and caddisflies.
On top of this, suction dredge mining stirs up mercury that would otherwise remain sequestered in streambeds. Also, mining can also significantly change the natural processes that shape stream channels by altering the gravel bed, increasing erosion, and undermining stream stability. Plus, miners often work in smaller tributaries where the impacts are magnified and impact downstream waters. In the cumulative, suction dredge mining has significant impacts on Oregon’s waterways and the species that depend on good water quality.
Not up to snuff: the previous 700PM permit terms failed to protect Oregon's water quality
The history of the 700PM permit demonstrates DEQ's struggles to find the best way to regulate the impacts of suction dredge mining. NEDC, Siskiyou Project, and Hells Canyon Preservation Council challenged the 2005 version of DEQ's 700PM permit, alleging (among other things) that the permit lacked the monitoring and reporting required by federal regulation. The miners also challenged the 700PM permit, arguing DEQ overstepped its authority. The miners alleged discharges from suction dredging constitute dredged or fill material, which is subject to the U.S. Army Corps' authority under section 404 of the Clean Water Act (CWA) rather than DEQ's delegated authority under section 402 of the CWA. In Northwest Environmental Defense Center v. Environmental Quality Commission, the court concluded the 700PM permit was invalid because its lack of specificity rendered it beyond DEQ's statutory authority. Nw. Envtl. Def. Ctr. v. Envtl. Quality Comm'n, 232 Or. App. 619, 223 P.3d 1071 (2009).
In 2009, California instituted a ban on suction dredge mining. This ban pushed additional miners into Oregon, further escalating the tension between the miners, regulators, and those seeking environmental protections. DEQ issued a draft 700PM permit in April of 2010, and a final permit in July of 2010.
In 2012, NEDC and the collaborating environmental groups entered a settlement agreement with DEQ. The agreement dismissed NEDC's lawsuit, initiated stakeholder meetings, and required DEQ to consider potential permit conditions to protect water quality, fish habitat, and recreation uses, and increase monitoring and enforcement mechanisms before the public review period for the next iteration of the permit (the 700PM general permit is effective for five years).
The new permit: changes that increase protection of Oregon's natural resources
DEQ's new 700PM permit, issued in March of 2015, incorporates some of the recommended conditions. The permit prohibits mining in waters impaired for sedimentation, turbidity or toxics. Additionally, miners must prominently display permit numbers on each dredge in order to facilitate permit enforcement. Operations cannot not occur where there are lamprey larvae or mollusks present. Finally, miners must submit annual reporting logs to DEQ, reporting their observations of turbidity and mercury. This new 700PM permit becomes effective on May 15, 2015.
Check out the new 700PM permit here.
Current and past legislation to ensure protection of Oregon's natural resources
Despite this progress, NEDC’s work continues. Currently, suction dredge miners are subject to a dual state permitting scheme in Oregon. Miners need the 700PM NPDES permit mentioned above. Depending on the proposed location of their activity, miners may also need a removal fill permit from the Oregon Department of State Lands (DSL).
In 2013, Oregon's legislature approved Senate Bill 838. SB 838 calls for a five-year moratorium beginning in January of 2016, unless a new regulatory framework is approved. SB 838 called for a Governor's work group to study the impacts of suction dredge mining and develop that new regulatory framework. The work group involved a range of stakeholders including representatives from federal and state agencies, the Tribes, the mining industry, the water recreation industry, fisherman, and environmental groups such as NEDC. This resulted in a legislative recommendation to the Governor's office which, not surprisingly, lacked many of the details needed to fully address the issue.
As a result, groups including NEDC and Rogue Riverkeeper are now working on Senate Bill 830 in the 2015 legislative session. SB 830 would eliminate the moratorium envisioned by SB 838 and establish a consolidated regulatory system under which recreational placer miners in Oregon would need a single state water quality permit. NEDC wants to make sure that any new framework will adopt the protections we have achieved in the 700PM permit context while creating a more workable, streamlined permit process for miners.
In the end, a clear permit process will result in better compliance and ultimately more protection of Oregon's natural resources. NEDC will continue to engage on this issue to ensure that Oregon’s water quality, aquatic life, and recreational uses are protected for years to come.
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