The proposed rule changes were mostly an effort to more clearly define the WOTUS for all Clean Water Act (CWA) programs. Most of the changes were related to tributaries, adjacent wetlands and “other waters.” As proposed, it would have expanded federal jurisdiction considerably over waters that have little or no connection to flowing streams and rivers, exposing new mines or mine expansions to additional permitting delays, which would further threaten the economy in the coalfields by putting more jobs at risk.

Despite the fact that the EPA said the rule would more clearly define tributaries, it was the definitions that worried the court the most. In its ruling, the court said, “In one sense, the clarification that the new rule strives to achieve is long overdue. We also accept that respondent agencies have conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance. Yet, the sheer breadth of the ripple effects caused by the rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being.”

A nationwide stay was granted by a 2:1 vote, with the majority believing that opponents currently challenging the rule would likely prevail. The court also took issue with the content of the rule, and the lack of notice and comment for significant changes that were added in the final version. The court also noted that the rule had already been stayed in 13 states.

“Recognizing the legal infirmities that could ultimately topple the rule, the court wisely decided to suspend the nationwide implementation of the waters of the U.S. rule,” said Hal Quinn, CEO, National Mining Association. “As it stands, the federal overreach embodied in the WOTUS rule will only add more uncertainty and delays to state, local and private land use decisions.”

Many in the mining business believe the rule does not comply with Supreme Court decisions and that they were not given significant notice to review and comment as required by law. The dissenting judge said the court should not issue a stay against the rule until it determines that it has jurisdiction under the CWA to review the rule. The majority believed they had the discretionary power to issue a stay until the questions related to jurisdiction are answered, and that briefing is under way. The court’s nationwide stay was the right decision as they consider the merits of a regulation that will surely impact the coal mining business and many other industries.

Steve Fiscor, Coal Age Editor-in-Chief
sfiscor@mining-media.com