The Industrial Minerals Association – North America (IMA-NA) has significant concerns regarding the recently released proposed rule from the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) that would revise the definition of “waters of the United States” (WOTUS) for all Clean Water Act (CWA) programs. Despite the agencies’ claims to the contrary, the definitional changes contained in the proposed rule would significantly expand federal control of land and water resources across the nation, triggering substantial additional permitting and regulatory requirements. This would be a new burden impacting not just the minerals industry but also a large chunk of the U.S. economy.
The IMA-NA believes this proposal is substantially flawed. The proposed rule is far broader in scope than the agencies will admit. The proposal provides essentially no limit on CWA federal jurisdiction. The proposal establishes broader definitions of existing regulatory categories such as tributaries, and regulates new areas that are not jurisdictional under current regulations, such as adjacent non-wetlands. Location of a water in a riparian area or a floodplain, or a connection through shallow subsurface water or directly or indirectly through other waters, and aggregation of similarly situated waters are some of the means used in the proposal to capture waters that might otherwise be non-jurisdictional. Because it lacks any real limit to federal jurisdiction it is inconsistent with the Supreme Court’s decisions, which clearly state that there are limits.
IMA-NA is also concerned that EPA went forward with this rule when EPA’s very own Science Advisory Board panel is still in the process of peer-reviewing the draft connectivity report, and, at its December 2013 meeting, the panel identified significant deficiencies with the report. Moreover, it does not appear that the agencies intend to give the public an opportunity to review the final connectivity report as part of the WOTUS rulemaking.
Furthermore, the one thing this rule was supposed to do is provide clarity for the regulated public. Unfortunately, this proposal fails to accomplish even that goal. The proposal leaves many key concepts unclear, undefined, or subject to agency discretion. For example, the rule asserts jurisdiction over waters or wetlands located within the “floodplain” or “riparian area” of a water of the U.S., but leaves to the agencies’ “best professional judgment” to determine what flood interval to use or what constitutes the riparian area. Such vague definitions and concepts will not provide the intended regulatory certainty and will likely result in litigation over their proper meaning.
IMA-NA is committed to the restoration and protection of America’s wetland resources, and stands ready to participate constructively in this important discussion.