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IMA-NA Comments on the new WOTUS rule

Posted By Ariel Hill-Davis, Thursday, April 18, 2019

Washington, DC—The Industrial Minerals Association – North America (IMA-NA) released the following statement after submitting comments on 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). The comment period concluded on Monday, April 15, 2019.

“We are happy to see the EPA and Army Corps of Engineers move closer to finalizing a commonsense definition of “waters of the United States” that honors the congressional intent of cooperative federalism,” said Vice President Ariel Hill-Davis.  “Along with other stakeholders, IMA-NA supports the Administration’s push to provide much needed clarity around WOTUS and is looking forward to seeing how the comments are incorporated in the final proposal.”

As we said in previous statements, “We remain committed to working with the Administration to ensure the final adopted proposal provides long-lasting clarity on the scope of federal jurisdiction according to the intentions of the Clean Water Act.” “Furthermore,” continued Ms. Hill-Davis, “IMA-NA believes clear rules will ensure our nation has clean water and we are grateful for the opportunity to engage in a rulemaking of such importance.”

 

To view IMA-NA's comments and the press release open the attachments. 

Download File (PDF)

 Attached Files:

Tags:  Clean Water Act  EPA  Regulations  waters  wotus 

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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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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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