The National Stone, Sand and Gravel Association (NSSGA) is joining forces with other aggregate industry lobby groups in the United States to appeal a federal court decision on clean water.
The court's decision has reinstated an Obama-era rule that defined which waterways are covered by the country's Clean Water Act regulations.
On August 16 2018, The U.S. District Court for the District of South Carolina decided to invalidate the Trump administration’s attempt for a two-year nationwide delay of the rule and put in place the "2015 Waters of the U.S. (WOTUS)", or clean water rule, across 26 states ... more than half the country.
In 24 other states the rule remains blocked by two other federal courts pending their review.
According to report on Bloomberg: “The ruling is problematic because it creates a patchwork of states where the WOTUS rule applies and others where it does not,” says Peter Tolsdorf, National Association of Manufacturers vice president for litigation and deputy general counsel.
He told Bloomberg Environment that: “The NAM will be appealing the decision in the [U.S. Court of Appeals for the 4th Circuit.”
For aggregates businesses based in the 26 states affected, plus the District of Columbia, the court’s ruling means they would have to seek Clean Water Act permits for releasing pollutants into streams and wetlands that are defined as waters of the U.S. or face penalties up to $52,414 per day says Bloomberg. The states where the rule is back in effect include California, Minnesota, Texas, and New York.
At least 30 states and industry groups have challenged the clean water rule. Other states including California, New York, Vermont, and Rhode Island support it.
Judge David C. Norton’s Aug. 16 ruling came in response to action taken by the Environmental Protection Agency and the Army Corps of Engineers in February to delay the rule from taking effect until Feb. 6, 2020, and reinstate a 1986 regulation clarifying the reach of the Clean Water Act.
At the same time, the two agencies began to take steps to withdraw the rule and rewrite it. Neither step has been completed.
“EPA and the Army will review the order as the agencies work to determine next steps,” an EPA spokesperson told Bloomberg Environment.
“We desperately hope the administration will take immediate steps in the court to limit the scope of this injunction to South Carolina,” said Ellen Steen, general counsel and secretary at the American Farm Bureau Federation, which belongs to a coalition of manufacturing and business groups that defended the Trump administration’s postponement of the rule and will now appeal the court’s decision. “Otherwise, this ruling puts farmers and ranchers in 26 states into enormous legal risk.”
The Trump administration’s attempt to postpone implementation of the waters of the U.S. rule was challenged by a coalition of regional and national environmental groups, including South Carolina’s Coastal Conservation League and American Rivers. The federal district court in South Carolina agreed that the government didn’t follow appropriate notice and comment procedures.
“The court made clear that the Trump administration cannot ignore the law, science, or the views of the American people in its rush to undermine protection of rivers and clean water,” American Rivers President Bob Irvin said in an Aug. 16 statement.
The court also noted that the Administrative Procedure Act contains safeguards so that a new administration cannot withdraw, or in this case suspend or delay, regulations of a previous administration without careful planning and meaningful public input, Steven Miano, a shareholder attorney with Philadelphia-based Hangley Aronchick Segal Pudlin & Schiller, Bloomberg Environment has reported.
