According to the Ninth Circuit Court of Appeals, water collected in waste rock pits during mining operations is not regulated as a point source under the Clean Water Act. Greater Yellowstone Coal. v. Lewis, No. 09-35729 (9th Cir. 12/23/10).

Plaintiffs argued that the Bureau of Land Management (BLM) had failed to properly consider the environmental impact of a proposed mine expansion in southern Idaho, as required by NEPA, and did not require the mine operator to acquire a CWA section 401 certification for its mine refuse pits. Section 401 requires applicants for a federal license or permit governing activities that will result in discharges to navigable waters to obtain a state-issued certification that those discharges will comply with the CWA.

In a 2-1 decision, the court held that the pits and an included stormwater cover system are already certified under section 401 of the CWA and are therefore not subject to a separate, new section 401 certification. Stating “[t]he pits that collect the waste rock do not constitute point sources within the meaning of the Clean Water Act,” the court also ruled that BLM’s decision not to prepare an environmental assessment was reasonable.

According to the dissenting judge, the court failed to consider a concern the U.S. Forest Service raised about the adequacy of the proposed pit cover design and the plan for remediating the existing mine sites, a consideration that is required by NEPA. Note that the Smoky Canyon Mine, which places waste rock in the pits during its mining operation, is subject to an ongoing CERCLA site investigation because of high selenium levels produced at the site.