WOTUS’ Impact on Aggregates, Explained
Waters of the United States, known as WOTUS, are federally regulated under the Clean Water Act of 1972. The goal of the Clean Water Act is to “restore and maintain the chemical, physical and biological integrity of the nation’s waters.”
Since the Clean Water Act’s passage in the 1970s, WOTUS definitions have changed based on a number of court rulings, amendments and regulations. On Jan. 23, 2020, the U.S. Environmental Protection Agency and the Department of the Army revealed the new Navigable Waters Protection Rule and its definition of waters of the United States. The rule goes into effect June 22, 2020.
The goal of the new rule is to offer regulatory clarity and protect federal waters. According to Emily Coyner, Senior Director of Environmental Policy at the National Stone, Sand and Gravel Association (NSSGA), the new rule gives businesses “more clarity, predictability and consistency.”
In the aggregates industry, Coyner said, WOTUS most notably impacts dredge and fill permits with the Army Corp of Engineers, which are often but not always required during development or expansion. “If required, this spurs other federal permitting and requires that affected waters be offset by mitigation,” Coyner said, which can increase cost, time and complexity. “Any change to what is considered a WOTUS can greatly impact operational burdens for the industry.”
The new rule, which replaced the 2015 Clean Water Rule, goes into effect 60 days from its entry into the federal register on April 21, 2020.
“The new rule clearly states what is and is not included,” Coyner said, adding that the list of 12 exclusions includes groundwater; ephemeral features; most ditches; water treatment systems including conveyances; artificial lakes and ponds. “If you plan a quarry on a site with an isolated stock pond, that pond should not be considered a water of the United States,” she said. Pits are also excluded, so if a company is purchasing or reopening a site that’s been abandoned for a time and filled with water, those man made pits and quarries should not be considered waters of the U.S.
According to Coyner, the most significant changes from the 2015 rule to the 2020 rule are for ephemeral and isolated waters, for which mitigation costs can be so high as to make a site unworkable.
Ultimately, the final rule considers four waters to be WOTUS: territorial seas such as the Great Lakes; navigable waters like the Mississippi River; intermittent and perennial tributaries that flow into traditionally navigable waters; and wetlands adjacent to navigable waters; and ponds, lakes and impoundments that contribute flows to traditional navigable waters. Compared with previous rules, the new rule’s clearer definitions will make it much easier for a landowner or operator to better understand what areas may be WOTUS and which are not.
For companies thinking about applying for a permit, to avoid confusion they may wish to wait until the new rule goes into effect late spring/early summer 2020. “For existing permits or jurisdictional determinations over the past five years, the preamble of the new rule said it’s possible for companies to request a new review under the new rule,” she added. Companies should make the decision on whether to revisit existing permits on a case by case basis.
Affected operations are urged to review the rule carefully, particularly the definitions and exclusions.
This new rule could be challenged in court, and state programs may extend protections to other bodies of water, including ephemerals and isolated waters. Additionally, the 2020 election may impact the rule, but WOTUS has not been a high priority campaign issue yet and it would not be quick or easy to repeal the new rule.