Stone, Sand & Gravel REVIEW - September/October 2017 - 17
Congress Tries LastMinute Corrections
May 2015: Final WOTUS rule
released with effective date of
* House passes HR 1732 in
an effort to force EPA to
withdraw and rewrite the
July 2015: Senate Environment
and Public works passes S. 1140
to withdraw and rewrite the
rule. Does not proceed to full
members of Congress on this vital issue.
The association supported multiple
pieces of legislation in both the U.S.
House of Representatives and Senate
that would have forced a rewrite of the
rule; unfortunately the Senate failed
DID A WATER OF THE U.S.
HAVE TO BE WET?
No, a feature could have been
considered a water of the U.S.
if it held water only rarely.
to pass any legislation. NSSGA even
supported a Congressional Review Act
(CRA) vote which passed Congress but
was rejected by President Obama.
During the comment period of the
proposed rule, EPA changed the name
of the rule from Waters of the U.S. to
the "Clean Water Rule" and illegally
lobbied to promote the rule. After
less than six months - a totally inadequate period of time to review the
over 1,000,000 comments, including
thousands of substantive legal, policy
and technical analysis - EPA finalized
a legally, technically and procedurally
BEFORE AND AFTER: MITIGATION THAT WOULD HAVE
BEEN REQUIRED UNDER WOTUS
"It is tough to say exactly how
much this rule could have harmed the
aggregates industry," said Matt Hinck,
environmental manager, CalPortland
Company. "Think about facilities in
the arid West states where new permits would have been required when
barely enough water accumulates to
float a pencil. The rule didn't make
sense, but still called for some expensive mitigation."
The final rule included unexplained
and apparently arbitrary distance
limitations that exceeded federal
authority and were a clear departure from the proposed rule, which
should have required another comment period. Congressional testimony
and internal memos from the Army
Corps of Engineers indicated that
EPA intentionally finalized an indefensible, unenforceable and expansive final rule over the objections of
industry and even the Corps - the
very agency charged with enforcing
Shortly after becoming final, NSSGA
joined litigation opposing the rule
and it was stayed nationwide by the
U.S. Court of Appeals in 2015.
President Trump made regulatory
reform, and specifically WOTUS,
WOTUS in Effect
Under current requirements, just
one segment of stream (dark blue)
would have been jurisdictional
for this facility to expand to the
unworked areas owned by the
operator (dotted pink).
Under WOTUS, ephemeral streams
(light blue) and wetlands areas
(green) would have been under
EPA jurisdiction and required
an estimated $1,000,000 in
August 2015: NSSGA joins
litigation to oppose the rule
on legal and procedural issues
and U.S. District Court in North
Dakota places stay on WOTUS
for 13 states.
October 2015: The Sixth Circuit
U.S. Court of Appeals issued a
nationwide stay of WOTUS.
STONE, SAND & GRAVEL REVIEW, www.nssga.org 17