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Wetlands – Clean Water Act Section 404

NSSGA POSITION:

NSSGA supports legislation to amend the Clean Water Act “CWA” to include specific language to reform 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.

NSSGA does not support EPA circumventing congressional action by expanding the CWA beyond congressional intent.

BACKGROUND:

Section 404 of the CWA has been a significant challenge 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 CWA included specific language to reform the over-regulation of wetlands under Section 404. There have been significant changes in wetland law and regulation 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 aggregates producers.
  • On Jan. 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 June 19, 2006, the U.S. Supreme Court limited CWA jurisdiction in Rapanos v. United States and Carabell v. U.S Army Corps of Engineers in a 4-4-1 ruling. In summary, five of the nine justices agreed the current regulations went too far but disagreed on how to determine where jurisdiction begins, resulting in the split decision.
  • On June 5, 2007, the Corps and EPA issued guidance implementing the Rapanos ruling. The guidance directs field staff to use either a “significant nexus” test or surface connection to assert federal jurisdiction.
  • On April 27, 2011, EPA proposed draft guidance that would expand the scope of jurisdiction under the CWA.  This document used a broad test for determining CWA jurisdiction that will subject waters near traditionally navigable waters to federal jurisdiction, including isolated ponds, wetlands, dry stream beds and ditches.
  • On April 21, 2014, EPA withdrew the draft 2011 guidance and proposed an even more expansive rule, automatically making many waters subject to CWA permitting requirements and, on a case-by-case basis including nearly all other waters.       The rule would sweep in dry stream beds, ditiches and other features with a remote and insubstantial connection to navigable water quality. The rule ignores court limits that an connection to navigable waters be “significant” and require a certain amount of flow.

Most areas currently accessed for sand and gravel operations like headwater areas and floodplains, and many areas of stone production would be impacted significantly. EPA’s proposed rule would expand the CWA beyond original congressional intent and eliminate the federal/state partnership inherent in the law. EPA’s proposed rule is in lieu of action by the 111th Congress on theClean Water Restoration Act, which would have removed the term “navigable” from the CWA and redefined “waters of the United States” using very broad and inclusive terms.   By expanding jurisdiction under the CWA in such a way, aggregates operators will have to seek additional federal approvals and permits in order to open a new operation or complete reclamation projects at significant cost and delay. Additionally, the inclusion of ditches and lack of clarity in the rule will impose strict new requirements on existing operations.

TALKING POINTS:

  • EPA’s rule will expand the CWA beyond original congressional intent and eliminate the federal/state partnership inherent in the law.
  • By expanding the CWA in such a way, aggregates operators will have to seek additional federal approvals and permits to site or expand a complete reclamation projects at significant cost and delay.
  • This overreach will impact existing operations by imposing stringent requirements on functional “waters” such as ditches and settling ponds.

Updated: September 2014