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Eastern Oregon Mining Association v. Department of Environmental Quality

Supreme Court of Oregon

July 25, 2019

EASTERN OREGON MINING ASSOCIATION; Guy Michael; and Charles Chase, Petitioners on Review,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY; Dick Pederson, in his capacity as Director of the Department of Environmental Quality; and Neil Mullane, in his capacity as Administrator of the Water Quality Division of the Department of Environmental Quality, Respondents on Review. WALDO MINING DISTRICT, an unincorporated association; Thomas A. Kitchar; and Donald R. Young, Petitioners on Review,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY; Dick Pederson, in his capacity as Director of the Department of Environmental Quality; and Neil Mullane, in his capacity as Administrator of the Water Quality Division of the Department of Environmental Quality, Respondents on Review.

          Argued and Submitted May 10, 2018

          On review from the Court of Appeals.[*] (CC 10C24263) (CC 11C19071) (CA A156161)

          James L. Buchal, Murphy & Buchal, LLP, Portland, argued the cause and fled the briefs for petitioners on review.

         [365 Or. 314] Michael A. Casper, Assistant Attorney General, Salem, argued the cause and fled the brief for respondents on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General, Salem.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, and Nelson, Justices, and Kistler, Senior Judge pro tempore.[**]

          Balmer, J., dissented and fled an opinion.

         Case Summary:

         Petitioners challenged a permit issued by the Oregon Department of Environmental Quality (DEQ) regulating discharges from suction dredge mining. DEQ issued the permit under the Clean Water Act, 33 USC §§ 1251-1388, through authority delegated by the EPA. Petitioners argued that the EPA did not have authority under the Clean Water Act to regulate discharges from suction dredge mining. According to petitioners, discharges from suction dredge mining do not fall within the EPA's permitting authority because the discharge do not constitute the addition of a pollutant and because, if the discharges are the addition of a pollutant, then they are discharges of dredged material subject to the exclusive permitting authority of the Army Corps of Engineers (the Corps). Held: (1) the EPA and the Corps have reasonably concluded that discharges from suction dredge mining constitute the addition of a pollutant; (2) the EPA and the Corps have reasonably concluded that discharges from suction dredge mining are not dredged material.

         The decision of the Court of Appeals is affirmed.

         [365 Or. 315] KISTLER, S. J.

         The Clean Water Act, 33 USC §§ 1251-1388, prohibits the discharge of any pollutant into the waters of the United States unless the Environmental Protection Agency (the EPA) or the Army Corps of Engineers (the Corps) has issued a permit authorizing the discharge. 33 USC §§ 1311(a), 1342, 1344. Acting under authority delegated by the EPA, the Oregon Department of Environmental Quality (DEQ) issued a general permit in 2010 for the discharge of certain pollutants resulting from suction dredge mining. Petitioners filed this proceeding arguing, among other things, that only the Corps has authority under the Clean Water Act to permit the discharge of materials resulting from suction dredge mining. The Court of Appeals disagreed and affirmed the trial court's order upholding DEQ's permit. Having allowed review, we now affirm the Court of Appeals decision.

         As applicable here, suction dredge mining involves using a small motorized pump mounted on a boat to "vacuum up" water and sediment from stream and river beds.[1]The water and sediment are passed over a sluice tray, which separates out heavier metals, such as gold, and the remaining material is then discharged into the water. In addition to discharging the leftover sediment and water, suction dredge mining creates a turbid wastewater plume and can remo-bilize pollutants, such as mercury, that otherwise would have remained undisturbed and relatively inactive in the sediment.

         This litigation began when DEQ's predecessor, the Oregon Environmental Quality Commission (EQC), issued a general permit in 2005 authorizing suction dredge mining in Oregon as long as that activity met certain water quality standards. See Northwest Environmental Defense Center v. EQC, 232 Or.App. 619, 223 P.3d 1081 (2009). The 2005 permit was challenged by both miners and environmentalists. In considering those challenges, the Court of Appeals reviewed regulations promulgated by the Corps and the EPA, as well [365 Or. 316] as those agencies' application of the regulations to suction dredge mining. See id. at 631-42. Based on that review, the Court of Appeals concluded that the process of suction dredge mining created both turbid wastewater plumes and dredged spoil. Id. at 643-44. It reasoned that turbid wastewater plumes are pollutants that may not be discharged into navigable water without a permit from the EPA (or a state agency to which the EPA has delegated its permitting authority) while dredged spoil constitutes dredged material that requires a permit from the Corps before it may be discharged. Id. at 644-45.

         Both sides sought review of that decision. After this court allowed review, the 2005 permit expired, and the case was dismissed as moot. See Northwest Environmental Defense Center v. EQC, 349 Or. 246, 245 P.3d 130 (2010). In 2010, DEQ issued a new five-year permit for suction dredge mining that complied with the distinction that the Court of Appeals had drawn in NEDC. See Eastern Oregon Mining Assoc, v. DEQ, 285 Or.App. 821, 826, 398 P.3d 449 (2017). Petitioners challenged the 2010 permit, which expired while the case was pending in the Court of Appeals, and the Court of Appeals dismissed the case as moot. Eastern Oregon Mining Assoc, v. DEQ, 273 Or.App. 259, 361 P.3d 38 (2015). This court reversed that decision, reasoning that the issue was capable of repetition yet evading review. Eastern Oregon Mining Association v. DEQ, 360 Or. 10, 376 P.3d 288 (2016). We remanded this case to the Court of Appeals so that it could consider whether to exercise its discretion to hear one or more of the issues that petitioners sought to raise.

         On remand, the Court of Appeals exercised its discretion to consider petitioners' first assignment of error- whether DEQ, acting under authority delegated by the EPA, legally could issue a permit for suction dredge mining. EOMA, 285 Or.App. at 833. The Court of Appeals did not exercise its discretion to consider petitioners' other assignments of error. Id. at 834. Specifically, it did not exercise its discretion to consider petitioners' third assignment of error claiming that DEQ's factual findings were not supported by substantial evidence. Id. Focusing only on the legal issues raised by the first assignment of error, the Court of Appeals adhered to its decision in NEDC; more specifically, it [365 Or. 317] considered and rejected the grounds that petitioners raised for reconsidering that decision. Id. at 838-39. We allowed review to consider the single assignment of error that the Court of Appeals decided.

         Before turning to that assignment of error, we note that neither petitioners nor the state disputes that the material discharged as a result of suction dredge mining constitutes a "pollutant" for the purposes of the Clean Water Act. That act provides that "pollutant" means, among other things, "dredged spoil," "rock," and "sand." 33 USC § 1362(6). The parties' dispute arises over which agency (the EPA or the Corps) has authority under the Clean Water Act to permit the discharge of those pollutants into the waters of the United States. Petitioners raise essentially two arguments on that issue. They argue initially that suction dredge mining does not come within the EPAs authority because that activity does not entail the "discharge" or "addition" of a pollutant to the water. They argue alternatively that, even if discharging material resulting from suction dredge mining adds a pollutant to the waters of the United States, the discharge is "dredged material," which the Corps has exclusive authority to permit. We begin with petitioners' first argument.

         I. ADDITION OF A POLLUTANT

         Petitioners' first argument starts from the proposition that the EPAs permitting authority applies only to the "discharge of a pollutant," and they note that the statutory phrase "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." 33 USC § 1362(12). Petitioners contend that, because suction dredge mining does not add anything to the water that was not already there, there is no addition of any pollutant and thus no discharge of a pollutant for the EPA to permit.

         Petitioners' first argument is problematic. Almost 30 years ago, the United States Court of Appeals for the Ninth Circuit held that, "even if the material discharged [as a result of placer mining] originally comes from the stream-bed itself, [the] resuspension [of the material in the water] may be interpreted to be an addition of a pollutant under the [Clean Water] Act." Rybachek v. EPA, 904 F.2d 1276, 1285 [365 Or. 318] (9th Cir 1990); accord National Mining Assoc, v. Army Corps of Engineers, 145 F.3d 1399, 1406 (DC Cir 1998) (reaffirming Rybachek while holding that the "addition" of a pollutant does not include incidental fallback of dredged material). As we read Rybachek, the court recognized that the statutory term "addition" is ambiguous, and it deferred to the EPA's reasonable conclusion that the suspension of solids resulting from placer mining-a practice that includes suction dredge mining-constitutes the "addition" of a pollutant within the meaning of the Clean Water Act.

         Since Rybachek, the EPA has confirmed that conclusion. In 2018, in responding to comments regarding the reissuance of a general permit for suction dredge mining in Idaho, the regional office of the EPA reaffirmed that the suspension of solid materials caused by suction dredge mining constitutes the "addition" of a pollutant to the water. EPA, Response to Comments on Idaho Small Suction Dredge General Permit 5 (May 2018).[2] Similarly, the EPA explained in response to another comment:

"If, during suction dredging, only water was picked up and placed back within the same waterbody, the commenter would be correct that no permit would be necessary. See South Florida Water Management Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004). However, in suction dredging, bed material is also picked up with water. Picking up the bed material is in fact the very purpose of suction dredging-the bed material is processed to produce gold. This process is an intervening use that causes the addition of pollutants [rock and sand, see CWA § 502(6)] to be discharged to waters of the United States."

Id. at 6 (bracketed material in original).

         We also note that, when the EPA reissued a general permit for suction dredge mining in Idaho in 2018, it prohibited suction dredge mining that resulted in visible turbidity "above background [levels] beyond any point more than 500 feet downstream of the suction dredge operation," directed operators to avoid "concentrated silt and clay," which could [365 Or. 319] cause "a significant increase in suspended solids resulting in increased turbidity and downstream sedimentation," and provided that, if mercury is found during suction dredge mining, the operator must stop suction dredge mining "immediately if that is the only way to prevent remobilization of the collected mercury." EPA, General Permit for Small Suction Dredge Miners in Idaho 19-20 (April 25, 2018). Those restrictions reflect the EPAs considered conclusion that suction dredge mining can result in the addition of pollutants to navigable waters in the form of suspended solids and "remobilized" heavy metals.

         Beyond that, the Corps and the EPA have issued numerous regulations in which they have recognized that redepositing materials dredged from stream and river beds constitutes a regulable discharge or addition of a pollutant. See, e.g., 33 CFR § 323.2(d)(1) (2001); 40 Fed Reg 31321 (July 25, 1975) (explaining the types of redeposits of dredged material that would constitute a "discharge of dredged material" under the regulations).[3] Those regulations implementing the Clean Water Act, as well as the agencies' consistent interpretation of them, warrant deference as a matter of federal law. See Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261, 277-78, 129 S.Ct. 2458, 174 L.Ed.2d 193 (2009) (setting out standards for deferring to agency regulations that interpret ambiguous statutes and the agencies' interpretation of their own regulations).

         Petitioners contend, however, that Los Angeles County Flood Control District v. Natural Resources Defense Council, 568 U.S. 78, 133 S.Ct. 710, 184 L.Ed.2d 547 (2013), requires a different conclusion. In that case, the Court reaffirmed that "the transfer of polluted water between 'two parts of the same water body' does not constitute a discharge of pollutants under the [Clean Water Act]." Id. at 82 (summarizing South Florida Water Management District v. Miccosukee Tribe of Indians, [365 Or. 320] 541 U.S. 95, 109-112, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004)). As the Court explained, "no pollutants are 'added' to a water body when [polluted] water is merely transferred between different portions of the same water body." Id. In this case, by contrast, the EPA reasonably could find that suction dredge mining does more than "merely transfe[r]" polluted water from one part of the same water body to another. Rather, the EPA reasonably could find that suction dredge mining adds suspended solids to the water and can "remobilize" heavy metals that otherwise would have remained undisturbed and relatively inactive in the sediment of stream and river beds. We agree with the Oregon Court of Appeals that the reasoning in Los Angeles County Flood Control District and Miccosukee does not call Rybachek's holding into question. To be sure, a federal Court of Appeals decision does not bind a state court interpreting federal law.[4] However, we agree with Rybachek that the EPA. reasonably has concluded that the suspension of solids and the remobilization of heavy metals resulting from suction dredge mining constitutes the "addition" of a pollutant that requires a permit under the Clean Water Act.

         II. POLLUTANTS RESULTING FROM SUCTION DREDGE MINING

         Petitioners mount a second, more substantial argument. They contend that, even if suction dredge mining adds pollutants to the water, the material discharged as a result of suction dredge mining constitutes "dredged material" over which the Corps has exclusive permitting authority.[5] Petitioners recognize that the Clean Water Act does not define the phrases "dredged * * * material" or the "discharge of dredged * * * material," but they argue that the regulations implementing the Act necessarily lead to the conclusion [365 Or. 321] that material discharged as a result of suction dredge mining qualifies as "dredged material." The state, for its part, argues that the EPA reasonably has concluded that suction dredge mining results in the discharge of processed waste that is subject to the EPA's permitting authority. In the state's view, the statutes and the implementing regulations are ambiguous on that issue; that is, the state recognizes that the material discharged as a result of suction dredge mining reasonably could be characterized either as dredged material or processed waste. The state maintains, however, that, in interpreting and administering their regulations, the Corps and the EPA reasonably have concluded that the material is processed waste subject to the EPA's permitting authority rather than unprocessed dredged material subject to the Corps' permitting authority and that we should defer to those agencies' reasonable interpretation.

         In considering the parties' arguments, we note, as a preliminary matter, that the United States Supreme Court addressed a related but separate question in Coeur Alaska. Because that decision resolves some of the issues in this case, we begin by briefly describing the Court's reasoning in Coeur Alaska. The initial issue in Coeur Alaska was whether the EPA or the Corps had authority under the Clean Water Act to issue a permit for the discharge of mining slurry into a lake. 557 U.S. at 273. Coeur Alaska planned to use a process known as "froth flotation" to remove gold bearing minerals from rock taken from a defunct gold mine; specifically, it planned to churn crushed rock from the mine in chemically treated water, which would cause gold-bearing minerals in the rock to rise to the surface of the water. Id. at 267. After skimming off those minerals, the company planned to discharge the resulting slurry (the leftover rock and chemically treated water) into a lake, where the mine tailings would sink to the bottom of the lake and the chemically treated water would be purified before it left the lake and drained into an adjacent creek.[6] Id.

         [365 Or. 322] Given regulations issued by both the EPA and the Corps, no party in Coeur Alaska disputed that the slurry constituted "fill," which was subject to the Corps' permitting authority. Id. at 275; see 33 USC § 1344(a) (authorizing the Corps to issue permits for the discharge of "dredged or fill material"). However, there was also no dispute that the chemically treated slurry constituted a "pollutant" that was subject to the EPA's permitting authority. See 33 USC § 1342(a)(1) (authorizing the EPA to issue permits for the discharge of pollutants other than dredged or fill material). The Court concluded that, in those circumstances, the Clean Water Act gave the Corps sole authority to issue a permit for the discharge of the slurry into the lake. 557 U.S. at 273-74.[7] The Court then turned to a second issue, which this case does not present; specifically, the Court considered the extent to which the Corps had to follow or, at a minimum, accommodate the water quality standards that the EPA had established for froth flotation mining in deciding whether to permit discharging the slurry into the lake. Id. at 277-91.

         As relevant here, Coeur Alaska holds that, if a single discharge constitutes "dredged or fill material" and another "pollutant," only the Corps has authority under the Clean Water Act to issue a permit authorizing the discharge of that material into navigable water. Id. at 273-74. As noted, this case differs from Coeur Alaska primarily in one respect. Although no party disputed that the slurry in Coeur Alaska constituted "fill," which was subject to the Corps' permitting authority, the parties in this case disagree whether the material discharged as a result of suction dredge mining constitutes "dredged material" over which the Corps has permitting authority or processed waste over which the EPA has permitting authority [365 Or. 323] Coeur Alaska teaches that, if Congress has not spoken directly to that issue, then the Corps and the EPA's reasonable interpretation of the Clean Water Act both in issuing regulations and interpreting their regulations is entitled to deference in determining whether a discharge constitutes "fill," "dredged material," or some other "pollutant." See id. at 277-78 (describing when the agencies' regulations and interpretation of their regulations will bear on the meaning of the Clean Water Act). As Justice Breyer explained, the majority opinion in Coeur Alaska:

"recognizes a legal zone within which regulating agencies might reasonably classify material either as 'dredged or fill material' subject to [regulation under section 404 of the Clean Water Act by the Corps] or as a 'pollutant' subject to [regulation under section 402 of the Clean Water Act by the EPA]. Within this zone, the law authorizes the environmental agencies to classify material as one or the other, so long as they act within the bounds of the relevant regulations, and provided that the classification, considered in terms of the purposes of the statutes and relevant regulations, is reasonable."

Id. at 291-92 (Breyer, J., concurring) (citations omitted); see also id. at 295-96 (Scalia, J., concurring in part and concurring in the judgment) (describing the majority's opinion as reflecting a form of deference to the agencies' interpretation and administration of the Clean Water Act). Following Coeur Alaska, we consider the text of the Clean Water Act, the implementing regulations, and the agencies' interpretation of those regulations. Finally, we consider what deference, if any, we owe to the agencies' interpretation of the Act and their regulations.

         A. Text

         Section 404 of the Clean Water Act authorizes the Corps "to issue permits, after notice and an opportunity for a public hearing, for the discharge of dredged or fill material." 33 USC § 1344(a). Unlike the term "pollutant," the Clean Water Act does not define what the phrase "discharge of dredged * * * material" means. More specifically, it does not define whether material that was dredged from navigable water remains "dredged material" after it has been processed. And, if processing dredged material can change its [365 Or. 324] character, the text does not identify the point at which the processed material becomes a pollutant other than dredged material that is subject to the EPA's rather than the Corps' permitting authority.

         It follows that the text of the Clean Water Act does not speak directly to the issue that this case presents; it does not answer whether the material discharged as a result of suction dredge mining is "dredged material" over which the Corps has permitting authority or some other pollutant over which the EPA has permitting authority. We accordingly turn first to the regulations promulgated to implement the Act and then to the agencies' interpretation and application of those regulations. See Coeur Alaska, 557 U.S. at 277-78 (explaining that, if the text of the Clean Water Act is ambiguous, courts look to the agencies' implementing regulations and, if those regulations are ambiguous, to the agencies' interpretation and application of their regulations to determine what the Act means).

         B. Regulation and administration of the Clean Water Act

         The regulations issued by the Corps and the EPA to implement the Clean Water Act do not specifically address which agency has authority to permit the discharge of material resulting from suction dredge mining. However, in later interpreting the regulations, the Corps and the EPA explained first in 1986 and later in 1990 that the EPA, not the Corps, is authorized under the Clean Water Act to issue permits for the discharge of material resulting from suction dredge mining. More importantly, since that time, the EPA has issued general permits after notice and comment for the discharge of material resulting from suction dredge mining, and the Corps has acted consistently with the EPA's permitting authority. As we discuss below, last year, the EPA reaffirmed that allocation of authority in issuing a general permit for suction dredge mining in Idaho.

         That regulatory history goes a long way toward answering the second issue that petitioners raise. Petitioners, however, argue that regulations adopted in 1975 and 2001 support their view that the Corps has exclusive permitting authority. We accordingly set out the regulatory history in greater (some might say mind-numbing) detail below. [365 Or. 325] Cf. Save Our Rural Oregon v. Energy Facility Siting, 339 Or. 353, 363, 121 P.3d 1141 (2005) (providing similar trigger warning). We begin with the Corps' promulgation of regulations defining "dredged material" and the "discharge of dredged material" in 1975. We then turn to a separate but related dispute over the difference between "fill" and "waste," which led to the Corps' express statement in 1990 that the EPA had exclusive authority to permit the discharge of waste resulting from suction dredge mining. After that, we consider the EPA's efforts from 1999 to 2001 to comply with a federal decision that "incidental fallback" of dredged material does not constitute the "discharge of dredged material," efforts that petitioners contend led to a 2001 regulation that supports their position. We also consider the Corps' 2008 rules, which the dissent views as dispositive. Finally, we look to the EPA's and the Corps' history of issuing permits for suction dredge mining.

         1. "Dredged material" and the "discharge of dredged material"

         On May 6, 1975, the Corps published four alternative sets of proposed regulations in response to a federal district court decision issued less than two months earlier. See 40 Fed Reg 31320 (July 25, 1975) (recounting that history). The district court had ruled that the statutory phrase "navigable waters" to which the Clean Water Act applies was broader than the Corps had understood, and it directed the Corps to adopt final regulations within 30 days (later extended to 80 days) that applied to "the entire aquatic system, including all of the wetlands that are part of it, rather than only those aquatic areas that are arbitrarily distinguished by the presence of an ordinary or mean high water mark." See 42 Fed Reg 37124 (July 19, 1977) (recounting the regulatory history).

         In carrying out that task, the Corps adopted definitions of "dredged material" and the "discharge of dredged material" in 1975 that, in relevant part, have remained largely unchanged. The regulations defined "dredged material" as "material that is excavated or dredged from navigable waters." 33 CFR § 209.120(d)(4) (1976). That definition, however, did not add much to the statutory phrase "dredged [365 Or. 326] * * * material." The regulatory definition essentially restated the statutory term and left unanswered when, if ever, dredged material that has been processed will become some other form of a pollutant that is subject to the EPA's permitting authority rather than the Corps'.

         The 1975 definition of "discharge of dredged material" shed more light on the issue. It provided:

"The term 'discharge of dredged material' means any addition of dredged material, in excess of one cubic yard when used in a single or incidental operation, into navigable waters. The term includes, without limitation, the addition of dredged material to a specified disposal site located in navigable waters and the runoff or overflow from a contained land or water disposal area. Discharges of pollutants into navigable waters resulting from the onshore subsequent processing of dredged material that is extracted for any commercial use (other than fill) are not included within this term and are subject to 402 of the [Clean Water Act] ***."

33 CFR § 209.120(d)(5) (1976).

         Not surprisingly, that definition makes clear that, if unprocessed dredged material is reintroduced into navigable water, it remains "dredged material," which is subject to the Corps' permitting authority. In explaining its proposed regulations, the Corps observed:

"The types of activities encompassed by this term [discharge of dredged material] would include the depositing into navigable waters of dredged material if it is placed alongside of a newly dredged canal which has been excavated in a wetland area. It would also include maintenance of these canals if excavated material is placed in navigable waters. Also included is the runoff or overflow from a contained land or water disposal area."

40 Fed Reg 31321 (July 25, 1975). All those activities focused on the placement of unprocessed dredged material adjacent to or in navigable waters, and the commentary to the regulations makes clear that the Corps' focus was on the discharge of dredged material in wetlands. That focus is hardly surprising since the district court's order had directed the Corps to include, for the first time, wetlands as part of the navigable waters to which the Clean Water Act applies.

         [365 Or. 327] The definition of "discharge of dredged material" also identified an exception to that definition. It provided that "[discharges of pollutants into navigable waters resulting from the onshore subsequent processing of dredged material extracted for any commercial use (other than fill) are not included within the term and are subject to section 402 of the [Clean Water] Act." 33 CFR § 209.120(d)(5) (1976). In explaining the exception, the Corps stated that "[discharges of materials from land based commercial washing operations are regulated under section 402 of the [Clean Water Act]" by the EPA. 40 Fed Reg 31321 (July 25, 1975).

         That exception resolves a question that the statutory text and the regulatory definition of "dredged material" had left unanswered. The exception makes clear that the act of processing dredged material can result in the discharge of a "pollutant" that requires a permit from the EPA under section 402 rather than the discharge of "dredged material" that requires a permit from the Corps under section 404.[8]

         Petitioners, however, rely on that exception to argue that the definition of "discharge of dredged material" draws a broad distinction between discharges resulting from processing dredged material on land, which will be subject to the EPAs permitting authority, and discharges resulting from processing dredged material over water, which will be subject to the Corps' permitting authority.[9] Because dredged material is typically processed over water during suction dredge mining, it necessarily follows, petitioners reason, that the material discharged as a result of suction dredge mining is "dredged material," which requires a permit from the Corps rather than the EPA.

         [365 Or. 328] Petitioners' argument is problematic for at least two reasons. First, the exception to the definition of "discharge of dredged material" does not draw the distinction that petitioners perceive. The exception does not distinguish between discharges that result from processing dredged material over water and discharges that result from processing dredged material over land. Rather, the exception applies to discharges from the onshore processing of dredged material that is extracted for a commercial use. If, however, dredged material is extracted for some other use (a recreational one, for example), then the exception does not apply regardless of whether the dredged material is processed over land or water.[10]

         Second, petitioners' argument depends on drawing a negative inference from the existence of a single exception to the definition of "discharge of dredged material." That is, petitioners' argument depends on the proposition that, by recognizing that discharges resulting from the onshore processing of dredged material extracted for a commercial use are pollutants subject to the EPA's permitting authority, the rule implies that all other discharges resulting from processing dredged material will be dredged material that is subject to the Corps' permitting authority. Apparently, in petitioners' view, that is true however the dredged material is processed and regardless of the type of chemicals that are discharged into the water as a result of processing.

         Ordinarily, the sort of negative inference upon which petitioners' argument depends is appropriate when there is "a series of terms from which an omission bespeaks a negative implication." Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81-82, 122 S.Ct. 2045, 153 L.Ed.2d (2002) (declining to infer that, by identifying a single statutory exception, Congress had precluded an agency from recognizing other exceptions). When, as in this case, a statute or a rule [365 Or. 329] identifies only a single exception, a negative inference is unlikely. See id. (explaining that the canon of construction for negative inferences "depends on identifying a series of two or more terms or things that should be understood to go hand in hand"). Beyond that, nothing in the Corps' explanation for recognizing the exception suggests that the Corps intended that all other discharges resulting from land-based and water-based processing of dredged material would be subject to the Corps' rather than the EPA's permitting authority.

         In our view, the better reading of the 1975 definition of "discharge of dredged material" is as follows: First, as a general rule, the redeposit of unprocessed dredged material into navigable water will constitute the "discharge of dredged material" and require a permit from the Corps. Second, some onshore processing of dredged materials will result in discharges of pollutants that require a permit from the EPA under section 402 rather than the Corps under section 404. Third, that exception to the definition of discharge of "dredged material" does not go further than identifying a single exception. That is, in recognizing an exception for one category of onshore processing (discharges from dredged material extracted for commercial uses), the rule leaves unanswered whether other categories of water-based or land-based processing operations will result in the "discharge of dredged material" that requires a permit from the Corps under section 404 or the discharge of a pollutant that requires a permit from the EPA under section 402.[11] Because the 1975 regulatory definition of "discharge [365 Or. 330] of dredged material" either does not address or does not unambiguously resolve whether discharges resulting from suction dredge mining are subject to the Corps' or the EPA's permitting authority, we look to the ways in which the Corps and the EPA subsequently resolved that issue.

         2. Fill and waste

         In 1977, the Corps renumbered and amended the regulations to address issues that had arisen since it promulgated them two years earlier. See 42 Fed Reg 37122-30 (July 19, 1977). Of relevance here, the Corps considered when the discharge of "waste materials such as sludge, garbage, trash, and debris in water" would constitute "fill" that was subject to the Corps' permitting authority and when they would constitute another pollutant that was subject to the EPA's permitting authority. Id. at 37130. Initially, the Corps took the position that the answer to that question turned on the purpose for which those materials were discharged into the water. Id. It modified the definition of "fill" in the 1977 regulations to "exclude those pollutants that are discharged into water primarily to dispose of waste," with the result that the EPA would have permitting authority over waste discharged primarily for that purpose while the Corps would have permitting authority over waste that was discharged primarily to convert wetlands into dry land. Id.

         In 1986, the EPA and the Corps entered into a Memorandum of Agreement to resolve a lingering dispute about the scope of "fill" materials that were subject to the Corps' permitting authority. See 51 Fed Reg 8871 (Mar 14, 1986) (publishing the 1986 agreement). The 1986 agreement was intended to be an interim measure pending the completion of studies that were being undertaken to determine the effect of solid waste disposal on ground water and human health. Id. Among other things, the 1986 agreement established criteria to determine when waste would be considered "fill" subject to the Corps' authority and when it would be considered another pollutant subject to the EPA's authority. Id. at 8872 (setting out the agreement).

         [365 Or. 331] Paragraph B.4 of the agreement identified four criteria for determining when waste discharged into water ordinarily would be regarded as fill subject to the Corps' authority.[12] Paragraph B.5 then described when waste discharged into the water would be considered a pollutant subject to the EPA's authority. It provided:

'"a pollutant (other than dredged material) will normally be considered by the EPA and the Corps to be subject to section 402 [and the EPA's permitting authority] if it is a discharge in liquid, semi-liquid, or suspended form or if it is a discharge of solid material of a homogenous nature normally associated with single industry wastes, and from a fixed conveyance, or if trucked, from a single site and set of known processes. These materials include placer mining wastes, phosphate mining wastes, titanium mining wastes, sand and gravel wastes, fly ash, and drilling muds. As appropriate, EPA and the Corps will identify additional such materials.'"

Id. (quoting that paragraph of the agreement).

         The first sentence in paragraph B.5 identifies the properties of discharged material that ordinarily will render the discharge subject to the EPA's permitting authority: That is, the sentence asks whether the discharged materials are liquid, semiliquid, or suspended, or, if solid, whether they are of a homogenous nature from a single source.[13] Those properties were broad enough to include unprocessed "dredged material," and, presumably for that reason, the first sentence of paragraph B.5 expressly excepted "dredged material" from materials that possess those characteristics. The second sentence in paragraph B.5 took a different approach to defining which materials are subject to the [365 Or. 332] EPA's permitting authority. Instead of listing the properties of discharged material, the second sentence listed specific examples of processed waste that will be subject to the EPA's authority. Not only does the second sentence expressly name the specific types of processed waste over which the EPA will have permitting authority, but it lists "placer mining wastes," which includes waste from suction dredge mining, as one of the wastes that will fall within the EPA's authority. Put differently, the second sentence makes clear that placer mining wastes are pollutants other than dredged material and thus subject to the EPA's permitting authority.[14]

         Four years after the Corps and the EPA issued the 1986 memorandum of agreement, the Corps issued a regulatory guidance letter that interpreted the 1986 agreement and stated that the material discharged as a result of placer mining is subject to the EPA's exclusive permitting authority. The 1990 guidance letter stated in full:

"Paragraph B.5 in the Army's 23 Jan 86 Memorandum of Agreement (M[O]A) with EPA, concerning the regulation of solid waste discharges under the Clean Water Act, states that discharges that result from in-stream mining activities are subject to regulation under Section 402 [by the EPA] and not under Section 404 [by the Corps].
"Dredged material is that material which is excavated from the waters of the United States. However, if this material is subsequently processed to remove desired elements, its nature has been changed; it is no longer dredged material. The raw materials associated with placer mining operations are not being excavated simply to change their location as in a normal dredging operation, but rather to obtain materials for processing, and the residue of this processing should be considered waste. Therefore, placer mining waste [365 Or. 333] is no longer dredged material once it has been ...

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