What the EPA’s proposed water rule means for you

June 17, 2014

Under the EPA's proposed rule, a variety of areas, including those that formerly contained water, could be subject to permitting and mitigation costs.
Under the EPA’s proposed rule, a variety of areas, including those that formerly contained water, could be subject to permitting and mitigation costs.

The Environmental Protection Agency (EPA) has proposed a rule that defines what waters are protected under the Clean Water Act. This new rule is likely to affect most operations throughout the U.S.

A new definition

According to the EPA, the new rule — formally known as the “Definition of ‘Waters of the United States’ Under the Clean Water Act” or 40 CFR 230.3 — aims to clarify which waters are protected.

The proposed rule expands the scope of protected waters to include streams and wetlands, according to the agency’s website.

The rule states that protected waters include “all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; all interstate water, including interstate wetlands; the territorial seas; all impoundments of waters identified in [the previously-stated waters and those in the next statement]; all tributaries of waters identified in [the previously-stated waters]; and on a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified [previously in this section].”

To read more of the proposed rule, click here.

Expanding federal waters

Emily Coyner, director of Environmental Services for the National Stone, Sand and Gravel Association (NSSGA), says the EPA’s proposed rule would expand the scope of federal waters. She notes that areas such as ditches and floods plains are included in the new definition.

“It used to be just navigable or next to a navigable or leading directly to a navigable,” Coyner says. “Now it can be all sorts of things.”

She adds that the expansion would likely require more sites to obtain water permits. She notes that producers often try avoid areas that will require a water permit, but the proposed rule would make doing so nearly impossible.

“EPA’s proposed rule is so broad that its going to be hard to find an area that you won’t need a permit for,” she says. “So even though our industry’s already subject to these permits, we’re going to have to get a lot more of them.”

She notes that she is especially concerned about operations in the western portion of the U.S.

“They’ve taken that flow part out of the equation. So if you think about out west and how many dry streambeds there are, where you may only get rainfall once every few years, that’s difficult,” she says. “A lot of the resources that are available out west are sand and gravel deposits. And a lot of those are within floodplains, and floodplains are now included in this.”

The cost of a new rule

A major concern regarding the proposed rule is the costs that sites are likely to incur.

In a testimony before the EPA last month, Memphis Stone and Gravel Co. Vice President Alan Parks pointed out that without the appropriate permits, small companies could be fined up to $37,500 per day.

But, as Coyner notes, the permits are expensive and can take years to obtain.

The cost of a permit and fines aren’t all that sites could have to pay. According to Parks’ testimony, mitigation costs — or expenses dedicated to fixing the water that is being disturbed — add to the concerns.

“One NSSGA member calculated that to do the additional mitigation of a stream required under this rule would be more than $100,000; this is just for one site in our industry,” Parks said during his testimony. “This is more than EPA has estimated the stream mitigation costs are for entire states in its economic analysis.”

Coyner says, though the estimate is for only one site, it serves as an example of what the industry could be facing.

“This type of work is really expensive. It’s really complicated. They usually have to have consultants and attorneys help them,” Coyner says. “So that is just a cost for one site, but it’s not atypical. Most of my members tell me that’s the kind of project that they’d have to do as a part of getting this permit.”

In addition to actual expenses, the rule would cost time to many sites. The permitting process takes several years already, and Coyner says more time would be added by increasing the number of sites that need a permit in the aggregates industry, as well as adding sites from other industries. She says the EPA is not likely to add workers who handle water permits, further increasing permitting times.

And, as Parks said in his testimony, “For our business, time is money.”

Coyner adds that some NSSGA members are also concerned about delays and supply interruptions.

“Obviously theres a limit to what they can charge,” she says.

Beyond the aggregates industry

The proposed rule would impact not only the aggregates industry, but also the people it serves, including the transportation industry.

Pat Jacomet, president of the Ohio Aggregates and Industrial Minerals Association (OAIMA) says a major talking point for the association at the Transportation Construction Coalition (TCC) Fly-In in Washington, D.C., June 9-11 was the proposed rule. He says the rule would affect the industry’s ability to work with transportation agencies.

“If the rules go, then all the funding in the world would not give us the resources we need to build roadways,” Jacomet says.

Jacomet says the rule will likely have a “far-reaching impact” on multiple industries. He says he and several other industry professionals have drafted a letter and have asked many different types of workers, including miners, contractors, farmers, homebuilders, and more, to sign a copy of the letter to be sent to the EPA. The letter outlines concerns such as costs, jurisdiction, and permitting.

“Anyone who would move earth should be very concerned about this rule,” Jacomet says. “I feel we’ll have a large array of interested parties.”

What you can do

Coyner says preparing for the rule is difficult because of the broad language included and because it is hard to predict how the people visiting the sites will interpret the rule.

She says the best thing to do right now is to become educated about the rule — read it, read articles about it, talk to others in the industry and to associations like NSSGA.

EPA is also accepting comments on the proposed rule until Oct. 20. (The deadline was originally slated for July, but the agency announced last week that it is extending the deadline.) To learn more about submitting a comment, click here, then click the “How To Comment” button.

To learn more about the EPA’s proposed water rule, visit epa.gov/uswaters.

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