Rock Products

OCT 2018

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54 • ROCK products • October 2018 LAW the Suspension Rule on the grounds that it violated the pro- cedural requirements of the Administrative Procedure Act, including the requirement to solicit public comment on the rule's substance and merits. Specifically, the court held that: The agencies refused to engage in a substantive reevalu- ation of the definition of the "waters of the United States" even though the effect of the Suspension Rule is that the definition of "waters of the United States" ceases to be the definition under the WOTUS rule and reverts to the definition under the 1980s regulation. The definition of "waters of the United States" is drastically different under these two regulations. Although the agencies did solicit comments prior to adopting the final rule, that request was limited to "whether it [was] desirable and appropriate to add an applicability date" to the Clean Water Rule, and whether the two-year delay should be "shorter or longer." The court found this to be inadequate, commenting that "An illusory opportunity to comment is no opportunity at all." As a result, the Clean Water Rule went back into effect in 26 states: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia, Washington. (Earlier injunctions in the remaining states stayed the applicability of the Clean Water Rule, so the South Carolina district court's ruling does not impact the state of the law in those states.) However, it's likely that the Clean Water Rule will not remain in effect for long. On Sept. 12, 2018, the U.S. District Court for the Southern District of Texas entered an injunction blocking the Clean Water Rule from taking effect in Texas, Mississippi and Louisiana. The court's order noted that "clarification regarding what is, and what is not, a navigable water under the Clean Water Act is long overdue" and, "until that question can ultimately be answered, a stay provides much needed governmental, administrative, and economic stability." The court further emphasized the significant resources that a state would need to allocate to determining how to inter- pret and implement the Clean Water Rule. However, it found that it was "inappropriate" to enjoin the Clean Water Rule's application nationwide, noting that "the evidence before the Court is insufficient to establish whether implementation of the Rule presents an irreparable harm to those states not a party to this litigation." Enjoining the Clean Water Rule's application in other states will therefore require additional action by the courts. What All of This Means Staying on top of the status of the EPA and USACE rulemak- ings and keeping an eye out for new decisions by courts across the country will be crucial to staying in compliance with the wetlands permit program requirements. But even that won't do away with all risks associated with mining or construction activities that have the potential to impacts waters that may potentially impact jurisdictional waters, given the uncertainty surrounding the status of the law. To ensure compliance, companies may want to consider conservatively applying the Clean Water Rule definition (especially in those states where courts have reinstated the Clean Water Rule, but not only in those states); seeking a jurisdictional determination from EPA and USACE for spe- cific waters so any discharges are with the agencies' blessing; delaying new construction or expansion impacting poten- tially jurisdictional waters until the definition is clearer. We'd like to think the confusion will only be temporary, given that the replacement rule proposed by EPA and USACE should be made public soon. However, given the significant litigation that has faced this rule since its inception, we expect to see similar challenges to the replacement rule as well. It may be some time before the issue is settled.

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