Rock Products

OCT 2018

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www.rockproducts.com ROCK products • October 2018 • 53 LAW Ali Nelson is senior counsel at Husch Blackwell LLP. As a member of the firm's Energy & Natural Resources team, she has experience advising companies in con- nection with mining and mineral extraction, regulated transmission projects, coal-fired power plants, and renewable and clean energy projects. Ali.Nelson@huschblack- well.com, 303-749-7263. The Clean Water Act protects "waters of the United States" through a number of federal programs, including the Section 404 permit program regulating the discharge of dredged or fill material into "navigable waters." The definition of "navigable waters" is therefore crucial to determining whether a permit is required. Unfortunately, its meaning is far from settled, which can create significant compliance issues for any mine, processing facility or con- struction site conducting activities with the potential to disturb waters that fall under this definition. History and Litigation The Clean Water Act itself simply defines "navigable waters" as "the waters of the United States," which offers little help. Regulations adopted in the 1980s defined "waters of the United States" to include waters that are navigable in fact; waters that are used in interstate commerce; and other waters the use, degradation or destruction of which would affect interstate commerce, including wetlands adjacent to such waters. The regulatory definition has since been tested in several key U.S. Supreme Court decisions; for instance, in Rapanos v. United States, 547 U.S. 715 (2006), the Court held that the Clean Water Act's jurisdiction extends to any water with a "significant nexus" to traditional navigable waters. In his concurring opinion in that case, Justice Kennedy stated that a "significant nexus" is present if the waters "significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable'." The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) have issued guidance as well. However, the regulations, case law and guidance didn't remove the ambiguity surrounding when a water was subject to regulation, and a case-by-case jurisdictional determination was required for projects to proceed with any certainty. In an attempt to provide that certainty, EPA and USACE adopted a final "Clean Water Rule" in 2015 defining "waters of the United States" to specifically include waters with a significant nexus to traditional navigable waters. That rule subjected certain categories of waters to jurisdiction, includ- ing tributaries with certain features (such as a bank and a What Are 'Waters of the United States'? It Depends on Where You Work – And When You Ask. By Ali Nelson high water mark), "adjacent waters" that are within a cer- tain distance of jurisdictional waters, and certain "isolated waters" of ecological importance (such as prairie potholes). But many thought the rule went too far; even before he assumed the role of EPA Administrator, Scott Pruitt voiced his opposition to the Clean Water Rule as "the greatest blow to private property rights the modern era has seen," and Presi- dent Trump referred to the rule as " one of the worst examples of federal regulation." A flurry of lawsuits were filed against the rule, and the U.S. Court of Appeals for the Sixth Circuit ruled in the cases con- solidated before it that it (and not the district courts) had jurisdiction over the litigation, staying proceedings in the dis- trict courts. On appeal to the U.S. Supreme Court, that Court decided on Jan. 22, 2018, that the cases should be heard by the district courts instead, and the Sixth Circuit lifted its stay on Feb. 28, 2018. Challenges to the Clean Water Rule were also proceeding in the executive branch at the same time. President Trump signed an executive order shortly after taking office order- ing EPA and USACE to take rulemaking action to withdraw the Clean Water Rule, and EPA and USACE published a final "Suspension Rule" on Feb. 6, 2018, delaying the effective date of the Clean Water Rule for two years. EPA and USACE sent a new proposed definition to the White House for review on June 15, 2018, which will undoubtedly define "waters of the United States" more narrowly. Recent Developments With the stay lifted, lawsuits in district courts across the country resumed, and others were filed in opposition to the Suspension Rule. On Aug. 16, 2018, the U.S. District Court for the District of South Carolina entered an order enjoining

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