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Small Miners Group and Legal Foundation File “Waters of the United States” Comments

Dec 12, 2017 | by William Perry Pendley

DENVER, CO.  A 122-year-old nonprofit, non-partisan mining trade association with thousands of members and a western nonprofit, public-interest legal foundation today supported adoption of an “applicability rule” to provide regulatory certainty and maintain the status quo while the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers finalize their proposed rule to rescind the 2015 definition of “waters of the United States” in the Clean Water Act (CWA).  American Exploration & Mining Association (AEMA) (once Northwest Mining Association) of Spokane, Washington, with Mountain States Legal Foundation (MSLF) as its attorney, had challenged the 2015 definition of “waters of the United States” because it would directly and adversely affect AEMA’s members, especially its small mining business members.  AEMA and MSLF filed comments in September supporting the regulatory changes in the definition of “waters of the United States.”

On November 9, 2015, AEMA filed a Petition for Review in the U.S. Court of Appeals for the District of Columbia, which was consolidated with other petitions before the U.S. Court of Appeals for the Sixth Circuit.  On June 23, 2016, AEMA filed a Complaint for Declaratory and Injunctive Relief in the U.S. District Court for the District of Columbia.  Both were stayed after the Supreme Court agreed to hear National Association of Manufacturers v. Department of Defense to decide whether appeals courts or district courts have jurisdiction to review the rule. 

“The applicability rule ensures that the 2015 definition will not go into effect while the EPA and the Corps conduct their rulemaking and while our lawsuit is before the Supreme Court,” said William Perry Pendley, MSLF’s president.

This proposed “waters of the United States” rulemaking joins a long history of Supreme Court litigation and other rulemakings to define the CWA phrase.  In 1985, deciding at which point “water ends and land begins,” the Court upheld a CWA definition of “waters of the United States” that included wetlands that “actually abut[] on” traditional navigable waters.  In 2001, the Court held that “non-navigable, isolated, intrastate waters,” even those used by migratory birds, were not within the CWA.  In 2006, ruling on whether the CWA included intrastate wetlands adjacent to non-navigable tributaries of navigable waters, the Court vacated the Corps’ rules.  For a four-judge plurality, Justice Scalia required a “continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” but Justice Kennedy, while concurring in striking down the rules, demanded “a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” 

The EPA and the Corps responded to the Court’s rulings and in late 2008, after the receipt of 66,000 comments, issued new guidance on identifying “waters of the United States.”  Then, in 2011, the agencies proposed new guidance that expanded significantly the reach of the CWA, including over vernal pools, prairie potholes, natural ponds, and playa lakes.  In response to 230,000 comments, many of which demanded a formal rule-making, the agencies published a proposed rule defining “waters of the United States,” which ultimately resulted in the 2015 definition of “waters of the United States” being challenged in federal court.

Mountain States Legal Foundation, founded in 1977, is a nonprofit, public-interest legal foundation dedicated to individual liberty, the right to own and use property, limited and ethical government, and the free enterprise system.  Its offices are in suburban Denver, Colorado.

For more information:  National Association of Manufacturers v. Department of Defense - U.S. Supreme Court

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