By: Nicholas W. Scala

The mining industry has an important stake in the long-running and momentous feud among business and private-sector advocacy groups and the Obama Administration over a disastrous environmental rule that vastly expands the government’s reach in regulating numerous types of water bodies. If fully implemented, the rule would affect almost every mining permit in the country.

At issue in both the court system and Congress is the Environmental Protection Agency’s (EPA) controversial “Waters of the United States” rule (“WOTUS”), which has been challenged on numerous fronts and enforcement already stayed by a federal court. EPA issued the rule last year despite the strenuous objections of critics who pointed out the rule’s impractical requirements and overreach. The agency also knew full well that the sweeping rule would have to withstand court proceedings and Congressional efforts to defund the rule.

While key industry groups like the National Sand, Stone and Gravel Association (NSSGA) have long fought the rulemaking and participated in the inevitable legal challenges, lawmakers have also refused to stand by and allow the EPA to proceed with implementing such radical changes to clean water regulation. Recent hearings and legislation in the House and Senate demonstrate the high level of Congressional interest in restraining the Agency on attempting to enforce this rule.

EPA finalized the rule last year, saying the new definitions under the law ensures that “waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry.” The Agency called the rule “grounded in law and the latest science,” and shaped by public input. WOTUS will require many new obligations on mine operators – one of the most concerning being the regulation areas currently considered non-wetlands being distinguished as adjacent waters.

Agency head Gina McCarthy said at the time:

“Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms, and warmer temperatures – which is why EPA and the Army have finalized the Clean Water Rule to protect these important waters, so we can strengthen our economy and provide certainty to American businesses.”

Despite saying it had met more than 400 times with stakeholders in devising the complex rule, which redefines the waters that fall under Clean Water Act protection, EPA largely missed the severe impact it would have on key sectors of the U.S. economy, including the mining industry.

House lawmakers have already moved in committee to block the rule through fiscal 2017 appropriations and similar language was introduced in the Senate, but has not passed the 60-vote threshold in the upper chamber that would be required to include the rider in a final bill agreed to by both houses. Of course, the White House also strongly opposes the legislative rider.

The House Appropriations Committee on April 19 passed by voice vote a 2017 spending measure that includes the language:

“None of the funds made available in this or any other Act making appropriations for Energy and Water Development for any fiscal year may be used by the Corps of Engineers to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act” (the Clean Water Act).

The Corps of Engineers is charged with enforcing EPA’s permits and would be the agency carrying out the changes sought by WOTUS, including how the regulations affect mining. Although, the Army Corps of Engineers has attempted to distance itself from WOTUS.

As House Appropriations Chairman Hal Rogers (R-KY) recently put it, the provision of the spending bill affecting WOTUS peels back a dramatic effort – not uncommon in this Administration – to unreasonably expand the federal agency’s authority, saying the bill:

“… prevents the Army Corps of Engineers and the EPA from moving forward with their ‘Waters of the United States’ rule, which allows these agencies to drastically expand their authority over waterways and force construction companies, farmers, coal operators and others to deal with unnecessary bureaucratic obstacles. This bill enables Congress to take action against these egregious examples of regulatory overreach and protect crucial industries from sinking under the weight of burdensome rules and requirements.”

Rogers also noted that the bill contained a provision that would “thwart the Administration’s efforts to modify the definition of ‘Fill Material,’ which would shutter coal operations across the country and eliminate countless well-paying jobs in the process.”

After the House bill made it out of committee, a full House vote was expected at any time, but barring Senate action, the rider will not go any further.

Still, lawmakers have helped keep the debate alive, and industry groups expressed relief at the vigorous attempts in Congress to stop EPA’s rule. Even if Congressional attempts to override (essentially by defunding) the rule ultimately fall short because of the hurdles in passing Senate and White House opposition, industry groups can take heart that EPA’s unprecedented power grab under WOTUS could be rejected by the courts.

The NSSGA along with multiple other industry groups and many states, after fighting it during the lengthy rulemaking process, are now battling the rule in court on behalf of mining operators and other businesses. These groups initially filed challenges to WOTUS across the country and in multiple federal courts, which would vie to be the venue where the lawsuits would be likely consolidated and heard, but for now the Sixth Circuit Court of Appeals has asserted jurisdiction over the proceedings.

NSSGA’s lawsuit filed last year calls the rule:

“An opaque and unwieldy regulation that leaves the identification of jurisdictional waters so vague and uncertain that Plaintiffs and their members cannot determine whether and when the most basic activities undertaken on their land will subject them to drastic criminal and civil penalties under the CWA.”

Further the action claims that EPA “subverted the notice-and-comment process by (among other things) failing to seek comment on scientific reports relied on in the Rule and on major revisions of the proposed rule, conducting an inadequate economic analysis, and engaging in an unprecedented advocacy campaign during the comment period that demonstrated a closed mind to comments.”

NSSGA noted that it had actively engaged with EPA throughout the rulemaking process, but the agency’s approach continued to prove misguided.

In an extremely positive sign, the Sixth Circuit has already issued a nationwide stay of the rule, keeping its provisions from going into force while the challenges are heard. The courts are still far from throwing out the new regulations, however, and EPA still has the support of years of case law backing its statutory authority to issue similar rules. Experience has shown that the EPA is often granted wide latitude in enforcing the Clean Water Act and other enabling statutes, so this remains an uphill climb.

Because of the effects it will have on permitting and established operations, mine operators should keep a close eye on developments in the defunding of this rule by Congress and eventual legal rulings. The EPA faces the collective opposition of private sector industry groups and even state governments as result of the expansive definitions set forth in WOTUS, and its potentially crippling effect on industry.