Rock Products

FEB 2019

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www.rockproducts.com ROCK products • February 2019 • 73 LAW Although this is just a pre-proposal, there have already been hundreds of comments on the rule's regulagions.gov page. The primary concern for some is that the rule's clearly defined view of the WOTUS will limit the jurisdiction of the CWA, reducing its effectiveness. The agency has conceded that some streams and wetlands regulated under the 2015 rule would not be regulated under the new rule. In their proposal, EPA and USACE explain that this adjustment is to ensure the CWA is not being applied more broadly than Congress intended under its Commerce power, and that the regulation respects the state's traditional state powers. Others, however, believe the new rule finally brings some clarity to the definition, especially since the Supreme Court decisions. Since those, exactly when a business needs to get a permit has been a contentious subject. Supporters of the rule believe it eliminates a lot of the case-by-case determinations and will allow EPA's application of the rule to be more con- sistent across the country. This would give businesses more confidence and reduce some of the legal expenses involved with regulatory uncertainty. What All of This Means for You For now, this rule is only a proposal and is still subject to change either before its initial publication or after public comment in the final rule. When the new rule is published in the Federal Register, consider how the new rule will impact your operation and submit comments on EPA's website. Keeping up with the EPA and USACE rulemakings and new court decisions is critical to staying caught up with per- mitting compliance. However, this does not remove all risk associated with mining or construction activities that have the potential to impact jurisdictional waters, or other waters that may have a similar potential. Although the proposed rule reduces the scope of the CWA, provides more certainty to the industry, and clarifies some longstanding contentions within its definition, companies should conservatively consider its application. When the rule is finalized, consider obtaining a jurisdictional determination from EPA and USACE for specific waters. Even when a rule is more laid out and defined, as this one is, there can still be ambiguities that need to be better clarified in the future. In addition, and like the CWR and suspension rule, we anticipate this rule will be subject to litigation which will further complicate its application and the extent it is legally in effect. 2019 BOOTH 40042

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