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 issuing strict guidance without a formal rulemaking process and expanding the CWA beyond congressional intent.
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:
EPA’s pending guidance is in lieu of action by the 111th Congress on the Clean 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. EPA is attempting to circumvent the rulemaking process again by issuing “guidance” that is, in fact, a rule without allowing for industry and public notice and comment. EPA’s guidance is expected to expand the CWA beyond original congressional intent and eliminate the federal/state partnership inherent in the law. By expanding jurisdiction under the CWA in such a way, aggregates operators will have to seek additional federal approvals and permits in order to complete reclamation projects at significant cost and delay. The guidance will also delay the permitting process for citing a new operation or expanding an existing operation.
Updated: September 2012