State v. Waters

DEQ's lack of authority to issue a permit is not a valid defense to not owning a permit. Suction dredging does not cause a discharge requiring an NPDES permit.

Defendant was observed engaging in suction-dredge mining without a permit on two separate occasions and charged with violating state water pollution laws. The state alleged that Defendant “unlawfully and with criminal negligence violate[d] [ORS] 468B.050 by . . . operating a small suction dredge without a NPDES 700-PM permit . . . which would otherwise alter the . . . properties of a water of the state in a manner not already authorized.” Defendant demurred, making several arguments concerning the statement’s lack of stated offense. The trial court denied the demurrer. Defendant was convicted of the charged crime. Defendant appealed, arguing that the trial court improperly denied his demurrer. Specifically, Defendant argued that the Department of Environmental Equality (DEQ) did not have the authority to issue the permit Defendant lacked, and that the statement did not identify a change or addition his actions made to the water. The Oregon Court of Appeals found that the charging statement in question “contained all elements of the offense with which Defendant was charged,” and that Defendant’s argument that DEQ lacked the authority to issue him the required permit did not absolve Defendant’s liability to obtain the required permit. The Court, however, did not decide whether suction dredging causes "discharge" or "addition" and therefore did not address whether a NPDES permit would be required. The Court held that the trial court did not err when it denied Defendant’s demurrer. Affirmed.