445 P.3d 251
Or.2019Background
- Oregon DEQ issued a general NPDES permit (section 402) for small in‑stream suction dredge mining in 2010; petitioners challenged DEQ's authority.
- Central legal question: whether discharges from suction dredge mining are "discharge of dredged material" under §404 (Corps) or "discharge of a pollutant" under §402 (EPA/state delegate).
- Regulatory history: 1975, 1993, 1999, 2001, and 2008 Corps/EPA rules and guidance addressed "dredged material," "incidental fallback," and processing; agencies earlier agreed (1986 MOA) that processed placer mining waste is a pollutant subject to §402.
- Agencies (EPA and Corps) and regional administrators issued general permits for suction dredge mining (e.g., Alaska permits 1994–2015; Idaho reissued 2018); Corps in Alaska has deferred sluice discharges to EPA/ADEC §402 permits.
- The Ninth Circuit and the panel below upheld DEQ/EPA permitting authority; petitioners relied on Corps rules and earlier permits (NWP 19, NWP 44, 1995 CA regional permit) to argue for Corps §404 control.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discharges from suction dredge mining are "discharge of dredged material" under §404 | Petitioners: all material returned to water is "dredged material" and thus falls under Corps §404 permitting | Respondents/Agencies: processed placer waste functions as a "pollutant" and is within EPA §402 authority; incidental fallback excluded | Court: §402 authority is proper; agencies reasonably classified processed suction‑dredge waste as pollutants subject to §402 |
| Whether agency regulations and rule history unambiguously place suction dredge activity under §404 | Petitioners: 2001/1993/2008 Corps rules and Corps permits show Corps authority over redeposit of dredged material | Respondents: regulations are ambiguous; exception for onshore processing and "incidental fallback" plus consistent agency practice support EPA §402 permits | Court: statutes/regulations are ambiguous; agency practice and formal EPA general permits merit deference and support EPA/DEQ authority |
| Whether agency permits and informal materials warrant deference (Chevron/Auer/Mead/Kisor) | Petitioners/Dissent: defer to the jointly promulgated regulations (Chevron/Mead) that define "dredged material" broadly | Respondents/Majority: deference appropriate to EPA general permits issued after notice‑and‑comment and to agencies' coherent, consistent practice (Mead/Auer/Kisor standards satisfied) | Court: grants deference to agencies' formal permitting practice and interpretations; upholds EPA/DEQ permitting under §402 |
| Whether a two‑permit regime (both §402 and §404) is impermissible here | Petitioners: only Corps §404 may apply; single‑agency control required | Respondents: agencies have allocated processed suction dredge waste to §402, avoiding overlap; no need here to resolve whether agencies could split responsibility | Court: does not decide broader two‑permit problem; affirms that EPA (or state delegate) may issue §402 permits for processed waste from suction dredging |
Key Cases Cited
- Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261 (2009) (agencies’ regulations and interpretations can warrant deference in Clean Water Act context)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984) (framework for judicial deference to reasonable agency statutory interpretations)
- United States v. Mead Corp., 533 U.S. 218 (2001) (degree of formality in agency action affects Chevron deference)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits and criteria for deference to agency interpretations of their own regulations)
- Rybachek v. EPA, 904 F.2d 976 (9th Cir. 1990) (redeposit of processed placer mining waste treated as addition of pollutant under CWA)
- National Mining Ass'n v. U.S. Army Corps of Eng'rs, 145 F.3d 139 (D.C. Cir. 1998) (distinguishing incidental fallback from regulated discharges of processed mining waste)