November 18, 2014 – Comments were submitted last week by the National Mining Association (NMA) and Waters Advocacy Coalition (WAC) on the U.S. Environmental Protection Agency and Army Corps of Engineers’ (Corps) proposed rule, “Definition of ‘Waters of the United States’ Under the Clean Water Act.”  79 Fed. Reg. 22188 (Apr. 21, 2014).  The proposed rule identifies which waters are jurisdictional under the federal Clean Water Act (CWA), and will apply to all CWA programs, including the Sec. 402 and Sec. 404 permitting programs, Sec. 311 spill prevention program and Sec. 401 state certification process. 

WAC represents over 60 trade associations, including NMA and multiple other energy, agricultural, transportation, construction, forestry and manufacturing groups. As such, WAC’s comments address several overarching concerns with the rule shared by multiple industries, including the legal and scientific infirmities with the broad definition of “waters of the United States” contained in the rule, potentially vast economic implications of the rule, and due process issues associated with how the rulemaking has thus far been conducted. WAC therefore calls for immediate withdrawal of the proposed rule, additional consultation with stakeholders, and reissuance of a revised rule based on sound legal and scientific principles. 

NMA’s separate comments, further call on the agencies to withdraw the rule in light of its potential to undermine the goals of Executive Order 13604, Improving Performance of Federal Permitting and Review of Infrastructure Projects. NMA’s comments also address issues of specific concern to the mining industry, including the proposal’s potential to inappropriately expand federal jurisdiction to on-site waters, the need to clarify the extent of the waste treatment system, artificial pond and ditch exclusions, and the need to ensure that excavations from pre-law mine works and water management features required under state and federal laws are excluded from CWA Jurisdiction.

NMA’s comments also include work commissioned by NMA from GEI Consultants addressing the agencies’ approach to asserting jurisdiction over ephemeral waters. Specifically, NMA’s comments object to the agencies’ broad categorical assertion of jurisdiction over all ephemeral “tributaries,” and argue that, at the very least, an ephemeral feature should have a bed, bank, and all three primary ordinary high water mark (OHWM) indicators, in addition to contributing flow to a traditional navigable water, before it can be deemed jurisdictional. NMA also argues that all three OHWM indicators must be continuous, and that where all three indicators are no longer perceptible upstream, jurisdiction must end. NMA’s comments further state the need for the agencies to develop potential additional criteria for arid regions where the concept of OHWM is not an appropriate indicator of flow, as well as the need for the Corps to make its August 2014 OHWM guidance part of the “waters of the United States” rulemaking and provide the public with an opportunity to comment on it prior to the finalization of the proposed rule.

While EPA has expressed a goal of finalizing the rule by April, 2015, it is not anticipated that the rule will be finalized that quickly.