Waters Advocacy Coalition

Miners Agree; CWRA Poses Consequences for Investments and Compliance with Existing Laws

The National Mining Association (NMA) respects that the supporters of this legislation consider their approach to be a clarification of congressional intent of the Clean Water Act’s jurisdictional reach. We disagree. Rather, these proposals would alter the statutory intent of the Act, unleashing a significant and substantial federal usurpation of the traditional powers of state and localities in land use and water resource management. For many businesses, including mining, changing the jurisdictional reach of the law poses considerable consequences for investments and compliance with existing laws.

Since coal and minerals are fixed in location, mining companies cannot go about finding, producing and supplying our economy without incurring water or land features where water may pass. As a result, NMA members have a long history of experience with questions about which waters fall within the purview of the Clean Water Act as well as the various permitting, performance standards and best practices that protect them.

The Clean Water Act is a comprehensive and complex statute. To determine congressional intent, one must start with the term “navigable waters,” which provides the statutory context for the obligation to obtain a permit before discharging a pollutant. In defining the term “navigable waters” as waters of the United States, it has been recognized that Congress intended to regulate at least some waters that do not meet the traditional understanding of the term. That does not, however, carry with it the notion that the term “navigable” has no effect at all on the meaning of waters of the United States. The Supreme Court’s decisions in both SWANCC and Rapanos confirm that the boundary is those waters with a “significant nexus” to traditionally navigable water.

When those bounds are reached does not leave a gap in protection. Where waters of the United States end, waters of the state still remain, and there is ample evidence the states are fully up to the task of protecting those resources. Indeed, the core policies informing the administration of the Clean Water Act include recognition of the states’ historic role in managing their water resources and their primary responsibility and rights to plan the development and use of land and water resources.

The proposed legislation alters fundamentally this framework. Deletion of the term “navigable waters” removes the historic understanding and constitutional bounds of federal regulation. No longer would waters need any sort of nexus or connection—let alone a significant one—with navigable, or even interstate, waters for the federal government to assert jurisdiction over any water or land over which water may pass. Moreover, removing “navigable” as the reference point eliminates the Commerce Clause power as the outer bounds of the federal government’s reach.

The existing permitting system is already overwhelmed, and the time and costs incurred to work through the permitting process are protracted and expensive. NMA supports the goals of the Clean Water Act to restore and maintain the integrity of our nation’s waters, but we do not believe changing the federal reach of that law is necessary to achieve those goals. A greater threat to the Clean Water Act’s goals may be a permitting system that is not capable of producing reasonable decisions in a reasonable timeframe—under mining much needed economic activity during a time when our economy is attempting to mount a fragile recovery.