IDAHO CONSERVATION LEAGUE V. SHANNON POE, No. 22-35978 (9th Cir. 2023)
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For several years, Defendant, Shannon Poe, engaged in instream suction dredge mining in Idaho’s South Fork Clearwater River (the South Fork) without a National Pollutant Discharge Eliminating System (NPDES) permit. Plaintiff Idaho Conservation League (ICL) sued Poe, arguing that he violated the CWA each time he operated a suction dredge on the South Fork without an NPDES permit. Poe countered that (1) his suction dredge mining did not add pollutants to the South Fork and therefore did not require an NPDES permit, and (2) even if his suction dredge mining did add pollutants, those pollutants are “dredged” or “fill” material regulated exclusively pursuant to Section 404, not Section 402, of the CWA. The district court granted summary judgment to ICL. Poe appealed the judgment as to liability.
The Ninth Circuit affirmed. The panel held that to establish a violation of the Clean Water Act’s NPDES requirements, also referred to as Section 402 permitting, a plaintiff must prove that the defendant (1) discharged, i.e., added (2) a pollutant (3) to navigable waters (4) from (5) a point source. As to the first element, the panel held that Poe’s suction dredge mining “added” a pollutant to the South Fork. The panel followed Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990), which upheld Environmental Protection Agency regulations interpreting the Clean Water Act. The panel further held that the processed material discharged from Poe’s suction dredge mining was a pollutant, not dredged or fill material, and therefore required an NPDES permit under Section 402 of the Clean Water Act rather than a permit from the Army Corps of Engineers under Section 404.
Court Description: Environmental Law The panel affirmed the district court’s grant of summary judgment in favor of the Idaho Conservation League in the League’s action under the Clean Water Act against Shannon Poe, who engaged in instream suction dredge mining, a method of placer mining, in Idaho’s South Fork Clearwater River without a National Pollutant Discharge Eliminating System permit.
The panel held that to establish a violation of the Clean Water Act’s NPDES requirements, also referred to as Section 402 permitting, a plaintiff must prove that the defendant (1) discharged, i.e., added (2) a pollutant (3) to navigable waters (4) from (5) a point source. As to the first element, the panel held that Poe’s suction dredge mining “added” a pollutant to the South Fork. The panel followed Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990), which upheld Environmental Protection Agency regulations interpreting the Clean Water Act as prohibiting discharges from placer mining sluice boxes unless done in compliance with a Section 402 permit. In two subsequent cases, S. Fla Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S.
95 (2004), and L.A. Cnty. Flood Control Dist. V. Nat. Res. Def. Council, Inc., 568 U.S. 78 (2013), the Supreme Court held that the transfer of polluted water from one location to another within the same waterbody did not constitute an “addition” of pollutants. Here, by contrast, Poe excavated from the riverbed materials that were not already suspended in the water. The panel concluded that Rybachek was not “clearly irreconcilable” with L.A. County or Miccosukee Tribe’s holdings, and it therefore was still good law.
The panel further held that the processed material discharged from Poe’s suction dredge mining was a pollutant, not dredged or fill material, and therefore required an NPDES permit under Section 402 of the Clean Water Act, rather than a permit from the Army Corps of Engineers under Section 404. Because the meaning of the Act and its implementing regulations was ambiguous, the panel deferred to the official joint conclusion of the EPA and the Corps.
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