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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 Additionally, there is still the slim possibility that WOTUS could be repealed legislatively as the Banks Amendment is attached to the House Farm Bill.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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Court Rules Against 2015 WOTUS Rule

Posted By Ariel Hill-Davis, Monday, June 11, 2018

On Friday, June 8th, a federal judge in Georgia granted a preliminary injunction against the Obama administration's 2015 Waters of the United States rule. The ruling issued by Judge Lisa Godbey Wood for U.S. District Court for the Southern District of Georgia found that the 11 states, which filed the suit, have a substantial likelihood of winning their claims against the 2015 rule. The states included in the ruling are Georgia, Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, Utah, West Virginia, Wisconsin and Kentucky. These 11 states join the 13 states granted a preliminary injunction against the 2015 rule by the U.S. District Court for North Dakota Southeastern Division. Friday's decision means the 2015 WOTUS rule is effectively blocked in half the country.

This decision is important for several reasons, despite the fact the country is not currently operating under the 2015 WOTUS rule due to the applicability rule issued by the Trump Administration. The applicability rule, pushes the implementation date of the 2015 rule back to 2020, to buy Administrator Pruitt's EPA time to draft, propose and finalize their own interpretation of Waters of the United States. There are currently several challenges to the applicability rule and should one win, it would mean the 2015 rule could go into effect.  Judge Godbey's ruling will make these legal challenges to the applicability rule more difficult for proponents of the 2015 rule to win. This was also the first District Court ruling since the Supreme Court decided in January to give primacy to District Courts on WOTUS challenges.

As IMA-NA has repeatedly stated, the process of finalizing a more common sense WOTUS rule, based on cooperative federalism is going to be long and drawn out. Each action taken by the EPA is going to trigger legal challenges, so it is important to note the courts continue to rule against the 2015 rule as it builds a record in our favor. Below you can read the statement from the Waters Advocacy Coalition on Judge Godbey's ruling. 

 

“Today’s court ruling is validation for the thousands of farmers, ranchers, and small business owners across the country who have been speaking out against the 2015 WOTUS rule as too broad, confusing, and crippling to their livelihoods,” said Waters Advocacy Coalition spokeswoman Stephanie Genco. “Americans deserve a common-sense WOTUS rule that doesn’t require a team of lawyers and consultants to navigate a maze of federal regulations before building on their own property or plowing a field on their farms. While the 2015 Rule is now stayed in 25 states all together, the other half of the country is still in limbo. That is why the Waters Advocacy Coalition will continue to call on the Environmental Protection Agency and the Army Corps of Engineers to withdraw the unlawful 2015 rule and release a revised definition of Waters of the United States that affirms the intent of Congress under the Clean Water Act and provides a regulatory structure that supports both clean water and clear rules.”

 

Tags:  court  district court  injunction  legal  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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EPA Update - Sue & Settle and WOTUS

Posted By Ariel Hill-Davis, Wednesday, October 25, 2017

Last week, EPA Administrator Scott Pruitt announced a significant change in policy at the Agency. Secretary Pruitt's Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, is aimed at ending the practices of setting regulatory deadlines and/or committing to undertake discretionary actions that are not required by statute through settlements with outside 3rd parties. Throughout the last Administration, environmental groups found great regulatory success by suing the EPA over purported failures to issue regulations by the dates required in the underlying statute or in a manner consistent with law. This practice became known as "Sue & Settle" and resulted in substantial regulatory action being undertaken due to settlement agreements rather than necessity. Under the new Directive the EPA must comply with the following guidelines when negotiating settlements:

The Agency Must:

  • Publish any notices of intent to sue the Agency within 15 days of receiving the notice;
  • Publish any complaints or petitions for review in regard to an environmental law, regulation, or rule in which the Agency is a defendant or respondent in federal court within 15 days of receipt;
  • Reach out to and including any states and/or regulated entities affected by potential settlements or consent decrees;
  • Publish a list of consent decrees and settlement agreements that govern Agency actions within 30 days, along with any attorney fees paid, and update it within 15 days of any new consent decree or settlement agreement;
  • Forbidden from entering into any consent decrees that exceed the authority of the courts;
  • Exclude attorney’s fees and litigation costs when settling with those suing the Agency;
  • Provide sufficient time to issue or modify proposed and final rules, take and consider public comment; and
  • Publish any proposed or modified consent decrees and settlements for 30-day public comment, and providing a public hearing on a proposed consent decree or settlement when requested.

To read the full Directive click here.

 

Waters of the US

The Waters Advocacy Coalition (WAC), of which IMA-NA and NISA are members, submitted comments to the Army Corps of Engineers related to the ongoing work of theDepartment of Defense Regulatory Reform Task Force. In accordance with Executive Order No. 13,777, each Department is currently reviewing existing regulations to determine which are unnecessary or overly burdensome, as currently written. WAC took the opportunity to submit comments to the record related to the 2015 redefinition of Waters of the United States. The comments are another avenue for the Coalition to work on correcting the overly expansive definition of Waters of the United States that was finalized in 2015. 

To read the comments click here

 

Finally, the EPA is continuing to conduct the sector specific listening sessions to solicit feedback on what a new redefinition of Waters of the United States should look like, ways the 2015 rule is flawed, and what a reasonable interpretation of jurisdictional scope should be. This Monday, EPA hosted the only in person listening session for small business entities. IMA-NA attended the meeting and is pleased to report back that the vast majority of oral comments offered were critical of the 2015 rule and in favor of a substantial redrafting.

The mining sector listening session is being held next Tuesday, October 31st, at 1pm EST. If you have not done so already please register to attend and contact Ariel Hill-Davis to coordinate comments.

 IMA-NA will also be offering written comments to the docket, which are due by November 28th. 

Tags:  comments  environment  EPA  Regulations  settle  sue  wotus 

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EPA Announces Public Meetings to Discuss the Definition of “Waters of the United States”

Posted By Ariel Hill-Davis, Tuesday, August 29, 2017

Following the EPA's announced proposal, in July, to withdraw the Obama Administration's "Waters of the US" (WOTUS) rule, the Agency will be working on a new proposal to define the jurisdictional reach of the Clean Water Act. Two weeks ago, the EPA and the Army Corps of Engineers announced the extension of the comment period on the proposal and then yesterday announced a series of public meetings throughout the fall to solicit stakeholder input. There will be ten public teleconferences held to solicit recommendations from different sectors for how to redefine the Waters of the US. In addition to the teleconferences there will be one in-person meeting for small entities, held in conjunction with the Small Business Administration. The mining sector meeting will be held on Tuesday, October 31 from 1-3pm EST. 

In addition to IMA-NA's ongoing work on our industry coalition and individual comments, staff will be participating in the meetings and encourages members to participate as well. 

To read more about the meetings and register click here.

 

Tags:  Army Corps of Engineers  EPA  Regulations  wotus 

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Senate to Vote on Waters of the U.S. Bill - Update

Posted By Ariel Hill-Davis, Monday, November 2, 2015

Tomorrow, November 3rd, the Senate is set to take up the Federal Water Quality Protection Act (S.1140) a bill aimed at forcing the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to go back to the drawing board on the "waters of the U.S." rule, which was finalized in May.  The EPA and Corps have faced significant opposition to their updated definition of "waters of the U.S." since the agencies issued proposed guidance back in 2011.  S.1140 adds to the momentum of opposition following the recent court decisions to stay the implementation of the rule, by requiring EPA and the Corps to more clearly outline the science and analyses underlying the rule. Opponents, IMA-NA and other industry associations included, see the rule as a unjustifiable jurisdictional land grab that will effectively give the EPA the authority to regulate most of the United States under the Clean Water Act (CWA). There are questions about both the process and science the EPA used in order to draft the rule.  S.1140 would force the EPA to revisit the rule and either provide the support for the regulation or alter it in order to reflect the actual parameters of the CWA. The bill was introduced by Senator Barrasso (R-WY) and has supporters on both sides of the aisle.

This bill is the companion bill to H.R. 1732, the Regulatory Integrity Protection Act, which passed the House in May. As of now, the bill has 46 cosponsors and it needs 60 votes to clear the Senate. 

To read the bill click here

If you are interested in urging your Senator to support S.1140, click here to find their office contact information. 

**Update** - The Senate failed to reach the 60 votes needed for passage of S. 1140.  IMA-NA, along with other members of the Water Advocacy Coalition (WAC), signed onto a letter expressing disapproval to Senators King, Nelson, Kaine, Warner, Feinstein, Schatz, Coons, Carper, Tester, Bennet and Klobuchar for voting against S. 1140 while simultaneously expressing concerns over the scope of WOTUS.  

Tags:  Army Corps of Engineers  Congress  EPA  legislation  Regulations  wotus 

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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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IMA-NA Participates in Women's Mining Coalition Annual Fly-In

Posted By Ariel Hill-Davis, Friday, April 17, 2015

The Women's Mining Coalition (WMC) kicked off their Annual Washington, DC Fly-In on Monday, April 13th.  Ariel Hill-Davis participated throughout the week in visits to various Congressional offices, as a representative for the Industrial Minerals mining community.  Over the course of the week, theWMC visited over 270 offices to meet with members of Congress and their aides on issues of importance to the mining community.  This year's top issues for WMC mirrored most of the topics IMA-NA is continuing to work on for our members.  Sage Grouse, Waters of the US (WOTUS), the American Minerals Security Act, and the impact of many of the new regulations and standards on the industrial sector; were the main topics of focus during the meetings.  The group asked members to consider supporting various pieces of legislation as well as continuing to educate themselves on the current state of the mining industry across the country.  If you have any questions about the Women's Mining Coalition or the meetings please contact Ariel.

Tags:  Congress  industrial minerals industry  legislation  minerals science  mining  policy  sage grouse  WMC  Women's Mining Coalition  wotus 

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