EPA’s new proposed jurisdictional waters definition and preemptive approach to mineral sector activities
EPA PROPOSED CHANGES TO CWA JURISDICTIONAL WATERS DEFINITION
The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) have released a proposed rule to clarify protections under the Clean Water Act (CWA) for streams and wetlands. The anticipated new and expanded definitions will apply to all Clean Water Act programs. The EPA/Corps’ intention is to make clear that Section 404, and other discharge prohibitions in the Clean Water Act, are applicable to the broadest range of “waters” and wetlands which can be subjected to EPA’s jurisdiction in accordance with the Supreme Court rulings in Rapanos v. U.S. and Carabell v. U.S. - June 19, 2006, Solid Waste Agency of Northern Cook County v. U.S. Army Corps - January 9, 2001, and United States v. Riverside Bayview Homes, Inc. - December 4, 1985. The proposed rule, once final, is likely to have significant impacts on permitting new mineral sector activity as well as on related businesses, construction, agriculture, municipalities and recreational interests throughout the country.
The broadened and clarified jurisdiction regarding ephemeral streams, isolated ponds and lakes, wetlands and man-made waters would significantly expand EPA/Corps’ exercise of authority to permit activities, such as exploratory drilling, tailings disposal and other activities which might affect the newly defined jurisdictional waters. Such permit requirements could, of course, trigger NEPA review requirements for many projects where the risks and delays inherent in that process are not currently being anticipated.
While there will be an opportunity for comment on the proposed rule, and possibly limited opportunity for engagement with the federal agencies which will be hosting discussions throughout the United States over the next three months to gather input, the mineral development and related sectors may want to consider undertaking an intensive effort in order to protect resource development in the United States.
EPA’S NEW APPROACH TO THE MINERAL SECTOR IN ADVANCE OF PERMITS BEING FILED
EPA has been criticized recently for what some have interpreted as a virtually unprecedented, proactive approach in its early oversight of mineral sector projects – most recently highlighted by proceedings in which the agency relied upon the construct of a hypothetical mineral extraction project to derive conclusions prior to any actual filings for EPA permits. EPA has also drawn criticism among some industry and stakeholder interests for failing to take into account certain positive effects mineral sector projects can have in contributing much needed resources for renewable energy needs in the United States, for its positive impacts in creating meaningful jobs and for providing significant benefits to the economy.
EPA is expected to target new mineral sector operations for early examination. Given this context, a prevailing concern among some circles is that not only will EPA use this newly asserted authority to preemptively deter new mineral activity in the United States, but that it could also retroactively affect already approved projects.
OPPORTUNITY FOR INPUT
The time between now and the end of this year is a period which can have critical impacts (both positive and negative) on the prospects for new and existing mineral projects and related activities in the United States.