CWA Reauthorization
NSSGA supports legislation to amend the Clean Water Act to include specific language that reforms the current Section 404 wetlands program. Section 404 does a poor job of protecting important wetlands and over-regulates lands where minimal or no real wetland values are involved. It is often used to stop growth of any kind and has been used to assert regulatory jurisdiction over incidental wetlands created on aggregate mining properties before all mining and reclamation is completed.
Section 404 of the Clean Water Act has been a significant problem for the crushed stone, sand and gravel industry since its passage. Originally designed as a dredge and fill disposal site permit program it has come to be a wetlands - “waters of the U.S.” - protection program. Past legislative efforts to amend the Clean Water Act included specific language to reform the over-regulation of wetlands under Section 404. There have been significant recent changes in wetland law that have changed the program without congressional involvement:
On June 7, 2000, the U.S. Army Corps of Engineers published a final rule on nationwide permits, which makes them far less available to the regulated community. NWP 44 for mining activities is applicable only for disturbances of ½ acre, which makes this permit virtually useless for aggregate producers.
On January 9, 2001, the U.S. Supreme Court ruled that federal water pollution control does not extend to isolated ponds and wetlands (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178).
On January 17, 2001, the Corps and the Environmental Protection Agency (EPA) published final revisions to the definition of discharge of dredged material in response to the remand from the U.S. Court of Appeals. This revised Tulloch rule claims that all activities in a wetland or water of the U.S. will result in discharges involving more than incidental fallback, and thus are subject to the requirements for a Corps permit.
In May of 2002, the Corps of Engineers and EPA published a final rule revising the definition of “fill material” to allow for the disposal of waste rock from mountaintop mining in waters of the U.S. This final rule is in direct conflict with a recent decision by a U.S. District Court in West Virginia that ruled the Corps lack authority under Section 404 to regulate mining wastes as a fill material.
- NSSGA supports a rulemaking, subject to congressional review identifying the criteria of federal wetlands under the Section 404 program.
- Wetlands should be classified based on value and function. Wetlands should be classified into three categories on a national, state or regional basis with “strict sequencing” in the high value wetlands; “public interest” (balancing) test in medium value wetlands; and automatic permit with mitigation requirements in lowest value wetlands.
- Incentive Programs should be developed for private landowners to conserve wetlands on their property. Tax credits and other benefits encourage landowners to leave privately owned wetlands in their natural state and to manage such lands accordingly.
- Although the EPA should remain the lead enforcement agency of the wetlands program, issue guidance to the corps, and be responsible for determining the criteria for a wetland, EPQA should not have the veto power over the Corps of Engineers decisions on wetlands.
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