Clean Water Restoration

The Industrial Minerals Association North America (IMA -NA) strongly opposes The Clean Water Restoration Act of 2007, H.R. 2421 and S. 1870, because it would expand federal Clean Water Act (CWA) jurisdiction to virtually all wet areas in the United States. The legislative activity is the result of two Supreme Court decisions, Rapanos and Solid Waste Agency of Northern Cook County (SWANCC), which left unclear as to whether or not regulators can oversee isolated, intrastate waters that have no or limited connection to navigable waters, the law's threshold for determining jurisdiction.

The Clean Water Act of 1972 was enacted in an effort to regulate navigable waters in the United States. The term "navigable waters" is further defined in the statute to mean "the waters of the United States." In the proposed legislation, the term "navigable" would be deleted from the statute and replaced with a new legislative definition of''waters of the United States" that includes all "intrastate waters" and all "activities affecting these waters." Unlike the existing CWA that is based on Congress's Commerce Clause authority to regulate "navigable waters," this legislation purports to exercise all ofCongress's authority under the Constitution including the Necessary and Proper, Treaty, and Property Clauses.

This legislation would grant EPA and the Army Corps ofEngineers, for the first time ever, jurisdiction over all "intrastate waters", which essentially includes all wet areas within a state, including: ditches, ground water, pipes, drains. The EPA and Corps would also have authority overall all "activities affecting these waters," whether public or private, and regardless of whether the activity is occurring in water or whether the activity actually adds a pollutant to the water.

The Savings Clause provision within the legislation fails to exempt any waters or areas from the new broad definition of"waters ofthe United States." It will exempt only certain activities from being considered "discharges." For example, maintenance of an irrigation ditch would not be considered a "discharge," but the ditch itself would still be a jurisdictional water such that all other activities affecting the ditch would be regulated.

There are numerous practical impacts that this new legislation will have as well, including:

•EPA and the Corps will exercise unlimited regulatory authority over all intrastate waters, including, for example, waters now considered entirely under state jurisdiction. Enormous resources will be needed to expand and defend the federal regulatory program, exacerbating an existing CWA funding gap and leading to longer permitting delays.

•Increased delays in securing permits will raise costs of and impede many economic activities related to the mining industry. Currently, it takes on average between 2-3 years to obtain an individual permit. The current backlog for individual permits is estimated between 15,000 and 30,000. Under the new legislation, both the wait time and backlog are sure to increase dramatically.

•An expanded federal water program would impose an unfunded mandate on States by increasing the number of waters subject to water quality standards, effluent limitation guidelines, the setting of Total Maximum Daily Loads (TMDLs), and expanding the permitting workload under various aspects of state-administered programs.

•Expanded federal jurisdiction would pre-empt traditional state and local government authority over land and water use decisions and alter the balance of federal and state authority.

The Industrial Minerals Association -North America is committed to the protection and restoration ofAmerica's wetland resources, and we stand ready to participate constructively in this important discussion.