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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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EPA Announces Finalized Ozone Standard

Posted By Ariel Hill-Davis, Thursday, October 1, 2015

Today, the Environmental Protection Agency (EPA) announced the finalization of its rule setting a new national ozone standard. The rule lowers the standard to 70 parts per billion (ppb) from the current standard of 75 ppb. This announcement comes four years after President Obama asked the EPA to withdraw the rule before finalization.  At the time the EPA seemed to be leaning towards a standard of 65 ppb and the President's decision to delay the rule was a victory for industry.  Today's announcement of a standard of 70 ppb is marginally better than an even lower standard, but it will still have a negative impact on industry across the country.  As the EPA pushes for ever lowering standards they continue to close in on background levels of ozone, meaning compliance becomes less and less realistic for not only industry but the rest of the country as well. Although the rule is not the worst case scenario, the news is not positive for the mining community nor industries in other sectors. 

To read the final rule click here

Tags:  air quality standard  emissions  EPA  industrial minerals industry  ozone  Regulations 

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IMA-NA Files Formal Protests in Response to Sage Grouse Plans

Posted By Ariel Hill-Davis, Thursday, July 2, 2015
On June 29th, IMA-NA partnered with National Mining Association (NMA), American Exploration and Mining Association (AEMA) and the Utah Mining Association to formally protest the BLM/FS land use management plans in Nevada/Eastern California, Idaho/Southwestern Montana and Utah. These were the only draft land use management plans that were open for public comment when IMA-NA decided to file comments regarding the Greater Sage Grouse. Using the attachments you can access and read all three filings. The outcome of the listing decision for the Greater Sage Grouse will continue to impact and inform the use of land out west for the foreseeable future. IMA-NA will continue to take opportunities to voice the concerns of our industry regarding the land use management plans.

Download File (PDF)

 Attached Files:

Tags:  Greater Sage Grouse  Regulations  sage grouse 

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Bi-State Sage Grouse Removed from the Endangered Species List

Posted By Ariel Hill-Davis, Thursday, April 23, 2015

Secretary of Interior, Sally Jewell, has announced the U.S. Fish and Wildlife Service’s (FWS) decision to remove the Bi-State Greater Sage-Grouse from the Endangered Species List. The announcement comes in the midst of the ongoing FWS deliberation on whether the Greater Sage-Grouse should be listed as threatened or endangered under the Endangered Species Act (ESA). Secretary Jewell’s announcement signals the success of the multiyear state lead collaborative conservation efforts in the Bi-State area. The Bi-State population of Greater Sage-Grouse inhabits approximately 4.5 million acres of land on the Nevada and California border and was designated as a Distinct Population Segment (DPS) in 2010.  The DPS classification recognizes that the Bi-State population of Greater Sage-Grouse is significantly genetically different from the rest of the population in the western United States, due to thousands of years of relative separation. 

Since the early 2000s state and local agencies in California and Nevada along with federal agencies, landowners and businesses created and enacted successful conservation plans for the Bi-State Greater Sage Grouse.  FWS’s decision to remove the Bi-State Greater Sage-Grouse from the Endangered Species list is a demonstration of the powerful role state and local conservation plans can be in efforts to protect wildlife. The 11 western states with populations of Greater Sage-Grouse have all been working diligently to create conservation plans tailored to balance protection of the birds with each states’ needs.  The success of the Bi-State Plan is an encouraging sign that FWS may not need to take close to 100 million acres of land in the west offline completely in order to protect this species. IMA-NA is hopeful this development will encourage FWS to approach the listing of the Greater Sage-Grouse in a more realistic way.

Relatedly, Senator Cory Gardner (R-CO) introduced the “Sage-Grouse Protection and Conservation Act” (S.1036) on April 22. The legislation would allow states six years to create and implement state specific conservation plans before the Department of Interior could make its decision to list the Greater Sage-Grouse as threatened or endangered.  Representative Chris Stewart (R-UT), is expected to introduced the House companion bill by the end of the week. 


To read the Department of Interior’s press release click here.

To read Senator Gardner’s press release click here .

Tags:  department of interior  ESA  Greater Sage Grouse  industrial minerals industry  legislation  Regulations  sage grouse  Secretary Jewell 

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Northern Long-Eared Bats Designated as Threatened Species

Posted By Ariel Hill-Davis, Thursday, April 2, 2015
Updated: Thursday, April 2, 2015

Yesterday, the U.S. Fish and Wildlife Service (Service) announced its decision to list the northern long-eared bat as "threatened" under the Endangered Species Act (ESA).  Specifically, it issued an interim special rule under Section 4(d) of the ESA that "eliminates unnecessary regulatory requirements for landowners, land managers, government agencies and others in the range of the northern long-eared bat," according to the Services press release. Previously, IMA-NA submitted comments to the Service suggesting that designation as "threatened" under Section 4(d) was a better option than a designation of "endangered" for the northern long-eared bat.  The northern long-eared bat population has declined substantially from the spread of the deadly white-nose syndrome (WNS), a fungal growth affecting hibernating cave bats.

The listing goes into effect on May 4, 2015, 30 days after publication of the final listing determination in the Federal Register. The Service is also accepting comments on the interim 4(d) rule through July 1, 2015. Additionally, the Service will be holding teleconference information sessions at the following times:

• Friday, April 3, 2015 at 1 p.m. Central Time
• Wednesday, April 8, 2015 at 3 p.m. Central Time
• Thursday, April 9, 2015 at 11 a.m. Central Time
To participate, call toll-free: 877-918-2510, enter passcode 9285200#.

IMA-NA's previous comments are attached and you can click here to read the press release and here to read the interim rule.

Download File (PDF)

Tags:  ESA  government  Northern Long-Eared Bat  Regulations 

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Final Rule on Hydraulic Fracturing Released

Posted By Ariel Hill-Davis, Friday, March 20, 2015

The U.S. Department of the Interior's Bureau of Land Management (BLM) released its final rule on the use of hydraulic fracturing to recover oil and natural gas on federal and Indian lands.  The BLM originally published a proposed in on May 11, 2012, but given significant public interest it published a supplemental notice and request for comments on May 24, 2013.  While the final rule has yet to be published in the Federal Register, an advance copy is available for viewing here. The final rule will become effective 90 days after publication in the Federal Register.

According to the final rule, the rule "fulfills the goals of the initial proposed rule:  To ensure that wells are properly constructed to protect water supplies, to make certain that the fluids that flow back to the surface as a result of hydraulic fracturing operations are managed in an environmentally responsible way, and to provide public disclosure of the chemicals used in hydraulic fracturing fluids.  The rule also:  (1) Improves public awareness of where hydraulic fracturing has occurred and the existence of other wells or geologic faults or fractures in the area, as well as communicates what chemicals have been used in the fracturing process; (2) Clarifies and strengthens existing rules related to well construction to ensure integrity and address developments in technology; (3) Aligns requirements with state and tribal authorities with regard to water zones that require protection; and (4) Provides opportunities to coordinate standards and processes with individual states and tribes to reduce costs, increase efficiencies, and promote the development of more stringent standards by state and tribal governments."

"Key changes to the final rule include:  (1) The allowable use of an expanded set of cement evaluation tools to help ensure that usable water zones have been isolated and protected from contamination; (2) Replacement of the "type well" concept to demonstrate well integrity with a requirement to demonstrate well integrity for all wells; (3) More stringent requirements related to claims of trade secrets exempt from disclosure; (4) More protective requirements to ensure that fluids recovered during hydraulic fracturing operations are contained; (5) Additional disclosure and public availability of information about each hydraulic fracturing operation; and (6) Revised records retention requirements to ensure that records of chemicals used in hydraulic fracturing operations are retained for the life of the well."

"The final rule also provides opportunities for the BLM to coordinate standards and processes with individual states and tribes to reduce administrative costs and to improve efficiencies."

The House and Senate Republicans have already come out in opposition to BLM's final rule. The GOP stance is this new rule will stifle the boom in energy development in the United States and create unnecessary costs for energy companies.

Relatedly, Senator James Inhofe (R-OK) introduced S. 828 yesterday, to clarify that a state has the sole authority to regulate hydraulic fracturing on federal land within the boundaries of the state.  Neither a summary nor the text of the bill are available at this time.  The bill was referred to the Committee on Energy and Natural Resource.

According to the Wall Street Journal, federal lands account for about 11% of the natural gas and 5% of the oil that the U.S. consumes.  The Journal notes that drilling on private or state-owned lands won't be subject to the regulations.  However, part of the federal government's goal is to create national standards for hydraulic fracturing that states and companies can adopt.  The Journal reports that some analysts feel the rules won't be unduly burdensome, perhaps contributing less than 0.5% to average well costs.

Tags:  BLM  Congress  DOI  energy  fracking  hydraulic fracturing  natural gas  Regulations 

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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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IMA-NA Comments on New U.S. Fish and Wildlife Service Proposals

Posted By Ariel Hill-Davis, Wednesday, October 15, 2014

Last week IMA-NA, in conjunction with several other associations, submitted comments to the U.S. Fish & Wildlife Service and the National Marine Fisheries Service (Services) on two rulemakings and one policy proposal regarding the Endangered Species Act (ESA).  The comments are a continuation of IMA-NA’s engagement with the Services related to the increased ESA activity.  The newest rulemakings address the designation of critical habitat for threatened or endangered species and the definition of destruction or adverse modification of critical habitat.  Additionally, the proposed policy covers implementation of Section 4(b)(2) of the ESA, which addresses how the Services will determine exclusions of areas from designation as critical habitat.

These additional proposed rulemakings and policy exemplify a vast and unnecessary expansion of federal jurisdiction of land use under ESA. The expansion of Service authority to designate critical habitats and land usage also reinforces regulatory uncertainty for the business community. The potential impact on land usage in the Western states should the Services finalize the proposals is largely negative. IMA-NA and our coalition of ally associations will continue to be engaged with the Services as these proposals go through the process.

In related news, the Services announced in August a re-opening of the comment period on the decision to designate the Greater Sage Grouse as a threatened species under ESA or not.  The Services are now anticipating making a final determination by April 28, 2015. To view the Federal Register announcement click here.

To read the comments please click here.

Download File (PDF)

Tags:  comments  ESA  Greater Sage Grouse  Regulations 

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U.S. Mine to Market Study Released

Posted By Ariel Hill-Davis, Monday, October 6, 2014

A recent study, commissioned by the National Mining Association, on the U.S. mine to market chain has been released and is gaining attention.  Conducted by SNL Metals & Mining, the study focused on the necessity of minerals to the continuance of a high quality life. One of the most important findings from the study is, despite a globally competitive mining industry and bountiful untapped resources the United States remains import-dependent on numerous materials.  The disparity between domestic mineral supply and demand is tied largely to the lengthy and inconsistent permitting process in the United States.  The complex permitting process coupled with uncertainty about regulatory interpretation and compliance drives investors to mining opportunities outside of the United States,  the U.S. Mines to Market claims.  According to the study, the average waiting period for U.S. mine permitting is seven to ten years. To put that into perspective, in Canada and Australia—countries with similarly stringent environmental regulations—the waiting period is two years. The potential for positive economic impact from greater investment in mining projects stateside is enormous.  Minerals are the building blocks for the processes and products we rely on daily, but take for granted. The study has recently been cited in two different pieces on the Hill’s Congressional Blog and draws attention to the importance of investment in U.S. mining.

To read the full study click here.

To read the Hill's coverage on the impact of mining on other industries click here and here.

Tags:  mining  permitting process  regulations  study 

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House Committee Releases EPA Maps Related to Waters of the US

Posted By Ariel Hill-Davis, Friday, August 29, 2014
The House Committee on Science, Space and  Technology released the Environmental Protection Agency (EPA) maps on the waters of the United States and wetlands for every state. These maps were drawn up in 2013 shortly after the EPA and the Army Corps of Engineers (Corps) initially proposed new guidance on the definition of waters of the United States. Despite assertions from the EPA that these maps have not been used to regulate yet, the picture painted by these maps underscores the potential reach of this rule. The EPA had not previously disclosed these maps to either Congress or stakeholders, despite several request by Congress and stakeholders. You can find copies of the maps here (avoid using the firefox browser). In addition, Chairman Lamar Smith sent a letter to Administrator Gina McCarthy requesting additional information about the maps, how they were used in the rule making process and asking for a 60-day extension of the comments. You can read the Chairman's letter here and the Committee’s press release here.
These maps do little to assuage industry and the public's concerns that this rule is an attempt by the EPA to extend its regulatory control across most of the United States.  The rulemaking process is ongoing and we are continuing to build a complete understanding of the impact.

Tags:  Congress  EPA  policy  Regulations  wotus 

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