Garrett Electronics - trusted by real miners & prospectors!

Magazine

Legislation & Regulation

Legislative and Regulatory Update

EPA rule blocked
The US Court of Appeals for the Sixth Circuit has issued a nationwide stay to prevent the Environmental Protection Agency and the US Army Corps from redefining Waters of the United States (or WOTUS).
 
The government agencies attempted a controversial rulemaking to “clarify” their jurisdiction over non-navigable waters. In essence, the agencies were attempting to take regulatory control over temporary waters such as ditches, ponds and seasonal washes.
 
The court stated:
 
[W]e conclude that petitioners have demonstrated a substantial possibility of success on the merits of their claims. Petitioners first claim that the Rule’s treatment of tributaries, “adjacent waters,” and waters having a “significant nexus” to navigable waters is at odds with the Supreme Court’s ruling in Rapanos, where the Court vacated the Sixth Circuit’s upholding of wetlands regulation by the Army Corps of Engineers. Even assuming, for present purposes, as the parties do, that Justice Kennedy’s opinion in Rapanos represents the best instruction on the permissible parameters of “waters of the United States” as used in the Clean Water Act, it is far from clear that the new Rule’s distance limitations are harmonious with the instruction.
 
Moreover, the rulemaking process by which the distance limitations were adopted is facially suspect. Petitioners contend the proposed rule that was published, on which interested persons were invited to comment, did not include any proposed distance limitations in its use of terms like “adjacent waters” and significant nexus.” Consequently, petitioners contend, the Final Rule cannot be considered a “logical outgrowth” of the rule proposed, as required to satisfy the notice-and-comment requirements of the APA, 5 U.S.C. § 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). As a further consequence of this defect, petitioners contend, the record compiled by respondents is devoid of specific scientific support for the distance limitations that were included in the Final Rule. They contend the Rule is therefore not the product of reasoned decision-making and is vulnerable to attack as impermissibly “arbitrary or capricious” under the APA, 5 U.S.C. § 706(2).
 
What is of greater concern to us, in balancing the harms, is the burden—potentially visited nationwide on governmental bodies, state and federal, as well as private parties—and the impact on the public in general, implicated by the Rule’s effective redrawing of jurisdictional lines over certain of the nation’s waters. Given that the definitions of “navigable waters” and “waters of the United States” have been clouded by uncertainty, in spite of (or exacerbated by) a series of Supreme Court decisions over the last thirty years, we appreciate the need for the new Rule. See Rapanos, 547 U.S. 715; Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985). 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.
______________
 
The full court ruling is available online at: www.ca6.uscourts.gov/opinions.pdf/15a0246p-06.pdf
© ICMJ's Prospecting and Mining Journal, CMJ Inc.
Next Article »« Previous Article

Add a Comment

Additional articles that might interest you...

The Perfect Response


In May, 2016, the Andersons received a letter from Steve Niemela at the Oregon Department of Fish and Wildlife requesting access to their property to conduct surveys for “foothill yellow-legged frogs and other amphibians.”

Legislative and Regulatory Update


• Pacific Legal Foundation joins effort to overturn California dredging moratorium
• PLP fund drive continues

Legislative and Regulatory Update


• Critical minerals a priority
• Montana miners win again
• MSHA backs down
• Environmental groups as foreign agents

Our Readers Say


“When dealing with federal agencies...”

EPA Tries to Intimidate Alaskan Miners


Alaska Governor Sean Parnell has ordered an investigation of the recent raids, saying he will not tolerate a state agency's participation in the sort of conduct displayed.

Oregon Miners Take DEQ to Court, Again


Since 2005, a group representing a handful of Oregon and Washington mining organizations, centered around the Eastern Oregon Mining Association (EOMA) and the Waldo Mining District (WMD), have been actively fighting the Oregon Department of Environmental Quality (DEQ) over their then new “700PM Suction Dredge Mining Permit.”

Clarification on Oregon's SB838


The 100-yard restriction in SB838 actually applies to all motorized mining for the purpose of extracting gold, silver or any other precious metal that results in the disturbance of vegetation.

Subscription Required:
The Bawl Mill   • Our Readers Say   • Ask The Experts   • SB 838 and the Salem Witch Hunt   • Small-Scale Hard Rock Production   • Researching Mineralized Areas   • MMAC & PLP Update   • VLF Detector Operating Modes   • Using Geologic Maps   • Canadian Company Recovers 1,111-Carat Diamond   • Lost Sally's Gold   • Time to File Claims in Southern California   • Colorado Disputes Key Part of EPA Mine Report   • Picking Our Way Through Bedrock   • Mining Stock Quotes and Mineral & Metal Prices   • Melman on Gold & Silver

Free:
What Is Incidental Fallback?

Advertisements

Precious Metals Recovery plants and equipment
Fighting to keep public lands open to the public
Specializing in the processing of precious metal ores!
Watch prospecting shows on your computer right now
Free Online Sample Issue