Subtraction by Addition

Therese Dunphy

September 1, 2009

by Therese Dunphy, Editor-in-Chief

For nearly a decade, the federal government has attempted to define what waters of the United States fall under regulatory purview of the Clean Water Act of 1972 (CWA). The term used in the act, “navigable waters,” apparently lacked clarity for regulators who have traditionally sought to broadly enforce the CWA.

When their ever-expanding definitions became too expansive, litigation typically followed. In 2001, the U.S. Supreme Court noted that isolated ponds and wetlands were not subject to federal water pollution regulation in the landmark Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. Five years later (in Rapanos v. United States), a split U.S. Supreme Court determined that CWA enforcement was too broad, but couldn’t agree on jurisdictional limitations. A year later, the Corps and the Environmental Protection Agency attempted to define regulated waters using the “significant nexus” definition.

The Clean Water Restoration Act (CWRA, S.787) purports to “restore the original intent of Congress” by clarifying the definition of regulated waterways. However, removing the word “navigable” from the definition does much more than “restore” the Clean Water Act — it greatly expands it. If the CWRA passes, it would expand regulated waters to include ‘all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows playa lakes, natural ponds, and all impoundments of the foregoing.”

What does this mean for aggregate producers? Incidental water bodies used for every day functions in an aggregates operation, such as wash ponds, fines management, and dust suppression could be subject to the CWRA. Reclamation plans could also be affected if they would impact these bodies of water.

The CWRA would add an additional layer to the ever-growing number of regulations and permitting challenges facing producers. And, as with all regulations, the costs are not insubstantial. In testimony submitted to the House Committee on Small Business, the National Stone, Sand & Gravel Association reports that a study of the Clean Water Act Section 404 permitting process (The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetlands Permitting Process, 42 Nat. Resources J. 59, Winter 2002) found that it takes an average of 313 days and $28,915 to obtain a nationwide general permit. Individual permits from the Corps average 788 days and $271,000 to receive.

Small producers are already struggling with challenging business conditions. Foisting additional permitting costs and restrictions could force some of these companies out of business or into a fire sale. Neither is good for an already fragile economy.

What Congress is proposing is not restoration; it’s reformation, and it is likely to have unanticipated and harmful consequences for many U.S. businesses, including small aggregate operators.

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