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Shepherd to push EPA nullification

BOISE – Eight months after the Riggins-area suction dredge mining community put its case to U.S. Sen. Mike Crapo, suction dredgers packed a joint hearing of the Idaho Legislature’s natural resources committees last Monday, Feb. 3. An hour of testimony – including speeches from two Idaho County elected officials – led to the Feb. 6 introduction of a bill by Rep. Paul Shepherd of Riggins to declare Environmental Protection Agency regulations “null and void.”

What did they say?!

The Idaho County Free Press has published transcripts of remarks at the Feb. 3 hearing by Idaho County Sheriff Doug Giddings (link) and Idaho County Commissioner Jim Chmelik (link). Video of the entire hearing is available for download through the Idaho Legislature's digital media archive (link).

The suction dredgers and the committee heard from Idaho County Commissioner Jim Chmelik and Sheriff Doug Giddings along with two others who testified in opposition to a Clean Water Act requirement, which stands to curtail suction dredging on Idaho County’s major rivers.

Joe Greene, a retired research biologist and suction dredge miner, and Tom Kichar, president of a mining association in Oregon, denounced the EPA’s rationale for requiring dredgers to obtain water pollution permits they did not previously have to obtain. The new permit has been required for suction dredgers in Idaho since May 2013.

In his presentation, Greene argued sediment released back into a waterway by a suction dredge should not count as water pollution – and so suction dredging should require no permit – because the sediments released by the process originate in the river. Suction dredges use water pumps to draw gravelly mixtures up from the riverbed through a hose to a small raft or platform, where gold is separated out by use of a sluice and river rock is released back into the river. Greene went on to quote a remark noted by former U.S. Supreme Court Justice Sandra Day O’Connor in a case he said dealt with turbidity in Florida: “If one takes a ladle of soup from a pot, lifts it above the pot, and pours the soup back into the pot, one has not ‘added’ anything else to the pot.”

Greene also highlighted a study of Fortymile River in Alaska, where he said EPA found suction dredge operations produced “less than significant” environmental impact.

After obtaining the permit, known as an NPDES permit, suction dredge operators are allowed to release the sluiced sediment back into some of Idaho’s rivers. (NPDES stands for National Pollutant Discharge System.)

But EPA has not made the permits available on all rivers; the EPA permits no “discharges into the Clearwater Basin and most of the water bodies in the Salmon River Basin,” it said, because these areas include Wild and Scenic designation, state protection (such as for a “state natural river” or a “state recreational river”) and critical habitat for endangered species.

When Shepherd presented his bill contesting the EPA’s decision last Thursday, he said: “It appears the bureaucracy had an agenda interpretation of what pollution is. And that’s a big concern because it’s pretty much shutting [the dredgers] down. It’s pretty unfair when a whole group of people can’t have that pursuit of happiness like we all want to have. And that comes to us through a bureaucracy instead of through representatives of the people.”

Rep. John Gannon, a Boise Democrat who said he would vote to advance Shepherd’s bill, stammered through a statement that the core idea – nullification – is on poor legal footing should the bill’s own constitutionality be challenged in court. Shepherd replied that he thinks it is legitimate to challenge bureaucratic rule-making – as opposed to laws made by Congress – in this way.

Dredgers have already taken their fight to courts elsewhere in the country. After Greene’s talk on Monday, Kitchar explained to the committee the Clean Water Act provides for two types of discharge permit: one for large-scale dredging, such as navigational projects handled by the Army Corps of Engineers, and NPDES permits, which cover all other discharges. “We in Oregon have been fighting with the EPA through our Department of Environmental Quality. Since 2005, we have been actively seeking to get rid of the NPDES portion of our permit in court for eight years now,” he said.

After Kitchar spoke, Giddings said he would not aid the federal agency with enforcement should the EPA attempt to enforce the permit requirements in Idaho County. In part, he put it this way: “As elected sheriff I enforce local and state law. I don’t enforce federal law. I’m not required to. I actually couldn’t if I wanted to. My primary focus as a sheriff is to enforce any violation of the citizens of my county where their constitutional rights are violated….As a sheriff I stand as the gap between people that I represent and was elected to represent, and the person who is putting the hammer on you…They [the federal agencies] just enforce these rules and they have a book of rules that you [the legislators] don’t make and I don’t make. I don’t even know what they are…when I ask for information from the EPA, they send me a whole boatload of stuff telling me why they have the authority to come into my county and inspect and fine the dredgers. And so I send them a copy of my book, the one that you [the legislators] wrote and tell them what I can do if I catch them in my county.”

Should the EPA move to enforce the permit requirements, the penalties for dredging without one would be those described in Section 309 of the Clean Water Act: at its discretion, EPA may take a variety of actions ranging up to administrative fines of up to $10,000 per day.

Shepherd’s nullification bill advanced by a unanimous voice vote and will be subject of a later hearing.

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