November 13, 2011

Navigating the Clean Water Guidance

In January 2012, the Environmental Protection Agency (EPA) is expected to release a proposed rule that would legitimize its “Draft Guidance on Identifying Waters Protected by the Clean Water Act (CWA).” In case you haven’t read — or contributed — comments on this guidance, it goes well beyond the EPA’s stated goal of providing “additional clarification” with regards to its definition of “waters of the United States.”

The issue is one that merits scrutiny from aggregate operators, as it could have a significant economic impact. In fact, when writing about the costs associated with permitting for CWA compliance in Rapanos v. United States, Supreme Court Justice Antonin Scalia said that “the average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915, not counting costs of mitigation or design changes.”

A clear definition of “waters of the United States” is needed. The Rapanos opinion is a fractured one. The plurality outlined a two-part test that indicates jurisdiction applies to a “relatively permanent body of water connected to traditional interstate navigable water” and that the wetland “has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetlands’ begin.” In Justice Kennedy’s concurring opinion, he suggested a single test. It requires that a wetland possess a “significant nexus” to traditional navigable water.

This led to significant confusion and inconsistent rulings with regard to what is and what is not a water of the United States. In comments submitted on behalf of the National Stone, Sand & Gravel Association, Holland and Knight’s Larry Liebesman points to the similarities between this ambiguous definition and that of “discharge of dredged material,” the catchphrase surrounding the Tulloch rules. Through Tulloch, the EPA and U.S. Army Corps of Engineers admitted that the definition required formal rulemaking. Equally importantly, such a formal process allows for public transparency and the frank discourse that prevents bad rules from being promulgated.

At this point, the EPA guidance has all the hallmarks of a bad rule. It would include areas that have only seasonal flow. It exceeds, rather than clarifies, the Supreme Court’s mixed definitions of waters of the United States. It allows the Corps to use desktop studies and data rather than site-specific documentation when determining jurisdiction.

With aggregate production down nearly 40 percent over the last five years, the industry does not need the EPA to codify an overly broad definition with costs that far exceed its benefits.

3 Things I Learned from this Issue

1. Making the right product is more important than making more product, page 10.

2. Non-profits can provide volunteers and investors for reclamation projects, page 17.

3. Using the narrowest possible shoe will extend the life of your dozer undercarriage, page 22.

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