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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 issuing strict guidance without a formal rulemaking process and 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  • On April 27, 2011, EPA proposed draft guidance that will expand the scope of jurisdiction under the CWA.  This document will use 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.

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.

 

TALKING POINTS

  • EPA’s guidance 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 complete reclamation projects at significant cost and delay.
  • The guidance would delay the permitting process for siting or expanding an operation.
  • EPA should issue any changes to CWA waters of the U.S. as rulemaking to allow for public notice and comment, as recommended by the Supreme Court.

Updated: September 2012