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CLEAN WATER ACT Jurisdictional RULE

This article discusses the 2014 Jurisdictional Rule of the Clean Water Act, its expansion of definitions, and its impact on permitting, NPDES testing, and other programs. It also explores the background, EPA drafts and reports, and the advocacy efforts and opposition from Congress. The next steps and potential significance of the rule are also highlighted.

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CLEAN WATER ACT Jurisdictional RULE

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  1. CLEAN WATER ACT Jurisdictional RULE Emily W. Coyner, PG National Stone, Sand & Gravel Association 703 526-1064 ecoyner@nssga.org April 8, 2014

  2. Previously, Waters of the US=

  3. Now-Waters of the US=

  4. 2014 Jurisdictional Rule • Tributaries: no SN required; adds wetlands, ponds, lakes, ditches; can be broken by dams and be man-made • Expands “adjacent” definition • Adds “case by case” consideration of virtually every other type of “water” • Some ditches excluded, but tough to prove

  5. 2014 Jurisdictional Rule • Goes FAR beyond court decisions • No frequency or amount of flow limits • Complicates/Slows/Increases Costs of CWA 404 Permitting • Also impacts other CWA programs • More NPDES testing? • Economic study-very low estimates

  6. Background • Rapanos/SWANCC Need for clarity/rule • Previous congressional failure to remove “navigable” from Clean Water Act • April 2011 Draft Guidance • September 2013 Draft Rule to White House • Guidance withdrawn • Draft Connectivity Study released for review • March 2014-Draft Rule released

  7. EPA Draft Connectivity Report • NSSGA commented November 6 • Science should be done before rule • Connections in specific areas/seasons • Not quantifiable, so how regulated? • House Science Committee oversight • Scientific Advisory Board review & scrutiny • April 28 & May 2 Meetings/June Final Report

  8. Proposed Rule Advocacy • Meeting and educating members of Congress • Years worth of effort with other industries • Letters, Appropriations, Hearings • Meetings with EPA • Explaining operations and permits • White House meetings • Economic impacts • Slow infrastructure & energy priorities

  9. Current Jurisdiction Proposed

  10. 2013 NSSGA White HouseMeetings • 12/12: Specific aggregates industry examples • Dry washes and floodplains; desktop studies • Costs for mitigation very high • 12/23: EPA’s Economic Study & “significance” • Deep recession data & existing “asks” • All or nothing costs and benefits • Misuse of data, studies outdated & used out of context

  11. Congressional Opposition • Ramped up immediately after rule release • Budget Hearings: • EPA Administrator grilled over rule costs, expansion and timing • Corps threatened with no funding for this rule • “Biggest land grab in the history of the world” • “Profound economic impact” • Oversight, specific hearings

  12. What’s Next • Rule comments due 90 days from FR notice • Hearings/Congressional Pressure • November: Senate Flip? • SAB Panel Connectivity Review May-June • Significance/Quantification

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