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IMA-NA Statement on the Publication of WOTUS in the Federal Register

Posted By Ariel Hill-Davis, Wednesday, February 20, 2019

Washington, DC—Today, the Industrial Minerals Association – North America (IMA-NA) released the following statement after publication of the new definition for the Waters of the United States (WOTUS) by the Environmental Protection Agency (EPA) and Department of the Army Corps of Engineers (Corps) in the Federal Register. The publication of the new rule in the Federal Register officially begins the 60-day comment period that will conclude on April 15, 2019.

 

“Now that the proposed definition of the Waters of the United States has been officially published, IMA-NA is looking forward to providing meaningful comments,” said Vice President Ariel Hill-Davis. “This is an important opportunity for stakeholders to provide feedback on the direction the EPA and Corps have chosen to take in defining WOTUS in accordance with cooperative federalism. We remain committed to working with the Administration to ensure the final definition provides long lasting clarity on the scope of federal jurisdiction according to the intentions of the Clean Water Act.”

 

As we said in our statement on publication, “IMA-NA looks forward to our continued partnership in the important work of preserving our water quality through responsible stewardship and practical regulation.” Furthermore, we encourage all supporters of clean water and clear rules to participate in the public comment period by submitting comments to the record.

 

IMA-NA is a non-profit trade organization representing industrial minerals producers throughout North America.  IMA-NA represents a diverse set of member companies engaged in mining and processing of ball clay, barite, bentonite, borates, calcium carbonate, diatomite, feldspar, industrial sand, kaolin, soda ash, talc, and wollastonite.

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Tags:  Army Corps of Engineers  Clean Water Act  EPA  Regulations  wotus 

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IMA-NA Welcomes Proposed New Water Rule

Posted By Ariel Hill-Davis, Wednesday, December 12, 2018

Washington, DC—Today, the Industrial Minerals Association – North America (IMA-NA) released the following statement after the Environmental Protection Agency (EPA) and Department of the Army Corps of Engineers (Corps) announced the proposed new definition for Waters of the United States (WOTUS):

“Yesterday’s release of the new proposed definition of Waters of the United States is an encouraging next step in the decades-long push for a WOTUS definition that empowers communities to protect their own water resources while providing regulatory clarity for our industry,” said Vice President Ariel Hill-Davis. “The announcement reiterates President Trump’s commitment to rein in federal overreach and provide regulatory certainty for the mining industry. IMA-NA is pleased to note that both the EPA and Corps remain focused on protecting our nation’s water through cooperative federalism.”

“IMA-NA appreciates the Administration’s efforts to solicit feedback from all stakeholders prior to drafting the proposal and commitment to crafting a commonsense and workable WOTUS definition. We look forward to our continued partnership in the important work of preserving our water quality through responsible stewardship and practical regulation.”

 

IMA-NA is a non-profit trade organization representing industrial minerals producers throughout North America.  IMA-NA represents a diverse set of member companies engaged in mining and processing of ball clay, barite, bentonite, borates, calcium carbonate, diatomite, feldspar, industrial sand, kaolin, soda ash, talc, and wollastonite..

 

 

 

 

Tags:  Clean Water Act  EPA  regulation  water  wotus 

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Federal Court Rules Against EPA on WOTUS Applicability Date

Posted By Ariel Hill-Davis, Friday, August 17, 2018

Yesterday, the United States District Court in South Carolina issued a nationwide injunction against the Environmental Protection Agency's (EPA) Waters of the United States (WOTUS or the 2015 rule) Applicability Date Rule. The court found that the EPA violated rule-making procedures in finalizing a rule to push the implementation date of the 2015 rule back to 2020. The Applicability Rule was the EPA's attempt to ensure continuity of standards across the country while the new definition is finalized, in the face of the Supreme Court decision which overturned the nationwide stay of the 2015 Rule. Thursday's decision, in effect, creates a regulatory patchwork related to the WOTUS. There are 26 states that will now operate under the 2015 Rule, while 24 states still have injunctions against the 2015 Rule. 

The EPA is currently in the process of finalizing the full repeal of the 2015 Rule, but the ruling in South Carolina creates a situation of extreme regulatory uncertainty related to the Clean Water Act. Additionally, there is still the slim possibility that WOTUS could be repealed legislatively as the Banks Amendment is attached to the House Farm Bill. The Farm Bill will be going through conference this fall, so there is a chance, albeit a small one, that the repeal could happen legislatively rather than through the EPA. IMA-NA and other stakeholders are working to get decisions as quickly as possible. 

This court decision could cause serious problems for companies, organizations, and individuals working through a permitting process in any of the 26 states now functioning under the 2015 Rule. If you already are holding water permits in these 26 states, this will not cause immediate impacts, but the process is likely going to become more complicated and difficult as states are forced to comply with the old WOTUS rule. Below is the list of the 26 states impacted by yesterday's decision. 

  1. California
  2. Connecticut
  3. Delaware
  4. Florida
  5. Hawaii
  6. Illinois
  7. Iowa
  8. Louisiana
  9. Maine
  10. Maryland
  11. Massachusetts
  12. Michigan
  13. Minnesota
  14. New Hampshire
  15. New Jersey
  16. New York
  17. Ohio
  18. Oklahoma
  19. Oregon
  20. Pennsylvania
  21. Rhode Island
  22. Tennessee
  23. Texas
  24. Vermont
  25. Virginia
  26. Washington

Tags:  Clean Water Act  court  EPA  injunction  Regulations  wotus 

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EPA and Corps Finalize WOTUS Applicability Date

Posted By Ariel Hill-Davis, Wednesday, January 31, 2018

Today, the EPA and Army Corps of Engineers announced they have finalized the WOTUS applicability date proposal. The importance of the finalization of this extension of the applicability of the 2015 WOTUS rule cannot be understated. Last week's Supreme Court ruling opened the possibility for the 2015 Rule to go into effect, once the 6th District's nationwide stay was lifted.  Since the nationwide stay was issued, waters have continued to be protected under the pre-existing WOTUS definition and state rules, and the government has issued over 21,000 determinations establishing federal jurisdiction under the pre-existing WOTUS definition.  Luckily Administrator Pruitt and the EPA had the foresight to issue a proposal to push the applicability of the 2015 Rule for two years, while the EPA and Army Corps of Engineers propose and finalize a new version and interpretation of "waters of the US". Just last week the applicability proposal was sent over to OMB for review and there was a question whether the Administration would be able to finalize the applicability date in time.

This rule is a prudent and measured step to preserve the status quo and provide regulatory continuity for all stakeholders while EPA and the Corps engage in rulemaking to consider whether to repeal the 2015 rule and, if so, how to replace the 2015 Rule with a new well-founded, protective, and clear definition of WOTUS.

IMA-NA and our coalition partners are pleased by the EPA’s and the Corps’ quick action to avoid needless regulatory uncertainty and legal risk for mining and farming operations, developers, small businesses, and other land owners.  Absent this action by the agencies, the result would be months of additional litigation, regulatory chaos, and legal risk for countless land owners. 

To read the Final Rule click here

To read the Press Release click here

Tags:  Army Corps of Engineers  Clean Water Act  EPA  Regulations  Regulators  WOTUS 

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Supreme Court Rules on the Waters of the US Case

Posted By Ariel Hill-Davis, Monday, January 22, 2018

This morning the Supreme Court issued their ruling in the Waters of the US case related to which courts have jurisdictional primacy in challenges to the Clean Water Act. The Court was of the unanimous opinion that challenges must be reviewed in federal district courts first rather than in the appeals courts. The promulgation of the 2015 Clean Water Rule set off litigation across the country in both district and appeals courts. The Supreme Court decision provides clarity on where to go to resolve disputes. The choice of court is significant because it affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits and helps determine whether actions can be challenged in subsequent civil or criminal proceedings.

The court found in favor of the National Association of Manufacturers, who brought the suit along with several states, industrial stakeholders, and some environmental groups. The Administration and some other environmental groups were on the losing side of this decision. This outcome complicates the current push to repeal and replace the 2015 Rule. With this ruling the 6th District's nationwide stay is thrown into question. While EPA Administrator Pruitt took action to prevent the immediate implementation of the 2015 Rule, in the event of this decision from the Supreme Court, next steps are uncertain at this point. The EPA issued a proposal in December to add a so-called applicability date to the regulation, meaning it could not be enforced until 2020. This proposal should theoretically provide the EPA enough time to finish and finalize a new version of the Clean Water Rule, without the 2015 Rule being enforceable in the interim. As we have been from the beginning IMA-NA and the Waters Advocacy Coalition will remain engaged as the next steps become clearer.

To read the Supreme Court opinion click here

Tags:  Clean Water Act  EPA  regulation  Regulations  SCOTUS  supreme court  wotus 

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EPA Proposes Delay in WOTUS Implementation Pending Supreme Court Decision

Posted By Ariel Hill-Davis, Thursday, November 16, 2017

Today, Secretary Pruitt signed a proposal to further delay the effective date of the 2015 Waters of the US (WOTUS) rule for 2 years. This proposal is geared towards ensuring the 2015 WOTUS rule does not go into effect in the event the Supreme Court (SCOTUS) decision in National Association of Manufacturers v. Department of Defense, is that WOTUS-related legal challenges must first go through district courts rather than jumping straight to the appellate level. A decision that challenges must pass through district courts first would effectively overturn the 6th Circuit's nationwide stay.  Thirteen states would still be under a stay issued by a judge out of North Dakota, but in theory the 37 remaining states would find themselves needing to abide by the 2015 WOTUS rule. Secretary Pruitt's action ensures the EPA has time to finalize the withdrawal of the 2015 rule and the new definition of Waters of the US. The EPA is currently working on a timeline to have a final proposal for the new rule by the end of 2018, while an ambitious goal officials have reassure IMA-NA and other industry leaders that the Agency is on track. 

To read the EPA announcement and Proposal click here

Tags:  Clean Water Act  EPA  Regulations  wotus 

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IMA-NA Comments on EPA's "Waters of the United States"

Posted By RJ Alpers, Monday, October 2, 2017

The Industrial Minerals Association – North America has filed comments in support of the Environmental Protection Agency and U.S. Army Corps of Engineers proposed rule to rescind the 2015 Clean Water Rule and recodify the definition of “waters of the United States” in place prior to the 2015 Rule. IMA-NA’s comments supplement the comments from the Waters Advocacy Coalition (WAC), which IMA-NA is also a part of. (The WAC Coalition represents a large cross-section of the nation’s construction, real estate, mining, manufacturing, forestry, agriculture, energy, wildlife conservation, and public health and safety sectors).

IMA-NA’s comments articulate that the 2015 Rule exemplifies jurisdictional overreach, creates regulatory uncertainty, and insist that a new definition of “Waters of the United States” is necessary. IMA-NA echoes WAC’s support for a rule making to “reasonably and clearly articulate federal and state CWA authorities”. Rescission of the 2015 Rule and the corresponding recodification of the pre-existing regulations would return the Code of Federal Regulations to the regulations that existed prior to the 2015 Rule and reflect the current legal regime under which the Agencies are operating. IMA-NA strongly supports the Agencies addressing the long-term uncertainty of the CWA by having a collaborative rule making process to set a final definition for “waters of the United States”.

To view IMA-NA’s comments, please click here

Tags:  Clean Water Act  CWA  EPA regulations  industrial minerals industry 

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Nation Wide Stay Issued on the Waters of the US Rule

Posted By Ariel Hill-Davis, Friday, October 9, 2015

This morning the U.S. Court of Appeals for the Sixth Circuit released a nationwide Order of Stay against implementation of the “Waters of the U.S.” Rule. The stay is an expansion of the preliminary injunction issued in August by theU.S. District Court in North Dakota, in a separate suit,  that applied to North Dakota and 12 other states involved in the suit. The Court of Appeals for the Sixth Circuit's decision expands the injunction to cover every state.  While the Court felt the 18 states in the suit did not face immediate irreparable harm from the rule, they also did not feel there was evidence that the nation's waters would suffer "imminent injury" should the implementation of the rule be delayed. For opponents of the "Waters of the U.S." Rule, this decision is not only immediate good news but in their judgment Judges McKeague and Griffin felt the case against the EPA's definition of the limitations of the new rule and their rule making process was strong.  The majority also noted concerns over the ripple effects of this rule despite acknowledging the need for an updated clarification of the jurisdiction of the Clean Water Act. 

To read the Order click here

Tags:  Clean Water Act  court  EPA  litigation  Regulations  wotus 

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Waters of the US Update

Posted By Ariel Hill-Davis, Thursday, January 29, 2015

Next Wednesday, February 4th, the Senate Committee on Environment and Public Works and the House Committee on Transportation and Infrastructure will hold a Joint Hearing at 10am entitled,"State & Local Impacts of Administration’s Proposed Expansion of Waters Regulation".  The Committees will hear from two panels of experts including: Environmental Protection Agency Administrator Gina McCarthy, Assistant Secretary of the Army, Civil Works Jo-Ellen Darcy, as well as officials from several different states. In conjunction with the hearing, Senator John Barrasso (R-WY) has announced his plans to introduce a bill to put a stop to the waters of the U.S. rulemaking and to clarify the scope of Clean Water Act jurisdiction.

The hearing will focus on the potential impacts of the rule on states and localities as well as the justifications for the scope of the regulation from the EPA and Army Corps. This hearing follows closely on the January 15th release of the EPA's study on the "Connectivity of Streams and Wetlands to Downstream Waters" which will be used as justification for the expansion of the definition of navigable waters under the Clean Water Act. The report makes the strong case for extensive connectivity and impacts on navigable waters regardless of surface water connectivity. The report can be found here.

The ongoing debate over the alteration of the definition of the Waters of the US has been heating up since the elections in November. During the Cromnibus negotiations in December the language to prevent the finalization of the rule was stripped from the final version of the spending bill. As could be expected from the now Republican controlled Congress, both Houses are demonstrating an interest in halting the finalization of the regulation as it currently stands, while President Obama maintains his threat to veto any bill that stops the finalization of the the new regulation. IMA-NA continues our engagement on the issue and will keep members abreast of any important developments.

To read more about the Joint Hearing click here

Tags:  Army Corps of Engineers  Clean Water Act  Congress  EPA  hearing  Regulations  wotus 

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Murky Waters - Environmental Roundtable Held on Proposed Water Rule

Posted By Ariel Hill-Davis, Wednesday, July 23, 2014

Earlier this week, the Small Business Administration(SBA) hosted an Environmental Roundtable meeting on the proposed rule defining the waters of the US under the jurisdiction of the Army Corps of Engineers  (Corps) and the Environmental Protection Agency (EPA) according to the Clean Water Act (CWA). Panelists included Ken Kopocis, Senior Advisor for the EPA Office of Water, William James, Acting Deputy Chief, Regulatory Program, and Virginia Albrecht, Counsel for the Waters Advocacy Coalition with Hunton & Williams.

Following Ken Kopocis's presentation explaining the EPA and Corps’ reasoning for offering the proposed rule and its impact, Virginia Albrecht spoke about the concerns of the small business community.  It is the opinion of the EPA and Corps that the proposed rule clarifies the definition of waters of the US without expanding their regulatory jurisdiction.  Mr. Kopocis highlighted the perceived legislative and judicial vagueness in establishing definitions for regulatory jurisdiction under the CWA. EPA and Corps believe the proposed rule is simply defining waters that already fall under the their jurisdiction vis a vis the CWA. This belief runs counter to that held by Industry, which holds the proposed rule as a massive expansion of jurisdiction over waters thus far outside the control of the EPA and Corps. As was said several times by both sides during the two-hour roundtable, industry and the Agencies do not hold a common view of the current jurisdiction of CWA and therefore see the rule in fundamentally different lights. Because EPA and Corps believe the waters being clarified already fall under the jurisdiction of CWA, the proposed rule does not appear to them as the jurisdictional land grab Industry considers it to be. Conversely, based on the current limitations as established in two separate Supreme Court cases; Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) and Rapanos v. United States (Rapanos), which respectively set limitations on the regulatory jurisdiction of CWA by finding against the Agencies' use of the Migratory Bird Rule and restricting the definition of “navigable waters", this rule can be seen as tremendous and conscious overreach.

Following the presentations, the panel took questions from the audience, the majority of whom represented various industries.  The overall message from participants to the EPA and Corps was that the proposed rule and its implications were unclear based on the information provided. Several participants commented that the panel, although helpful, should have happened during the earlier phases of the rulemaking and urged the EPA, Corps and SBA to pull the proposed rule and start over with a SBREFA Panel in order to establish the impact on small businesses. Despite the calls for a more active collaboration on drafting a rule, Mr. Kopocis responded by highlighting the opportunity to submit public comments during the comment period. If the interaction during the question and answer session is any indication, further collaboration on the proposed rule will happen through comments, rather than through other potentially enlightening and useful processes.

IMA-NA is part of the Water Advocacy Coalition and strongly opposes the expansion of jurisdiction of the CWA. To read more about the proposed rule click here.

Tags:  Clean Water Act  CWA  EPA  Regulations  SBA  Small Business Administration 

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