NSSGA sues EPA over WOTUS
National Stone, Sand & Gravel Association seeking to stop Waters of the United Sates rule
THE National Stone, Sand & Gravel Association (NSSGA) has filed a lawsuit as part of a coalition of business organizations challenging the Environmental Protection Agency’s Waters of the United States (WOTUS) rule.
According to the Association, WOTUS radically expands federal jurisdiction under the Clean Water Act (CWA) and poses serious concerns for the aggregates industry and the nation.
Prior to the lawsuit, NSSGA actively engaged with the Environmental Protection Agency (EPA), highlighting the flaws of the proposed rule both in person and through extensive comments. It says those comments and concerns were largely ignored and the EPA will enact the final WOTUS rule on 28 August 2015.
As a result, says the NSSGA, many areas of previously unregulated land will fall under federal jurisdiction and require costly federal permitting, correction or mitigation, which, in turn, will cause increased delays and cost overruns for critical public works projects, costs which will, ultimately, be borne by taxpayers.
‘The WOTUS rule is one of the most egregious examples of federal agency overreach that I have ever seen,’ said Michael W. Johnson, president and CEO of the NSSGA. ‘We tried to work with the EPA early on in the process, but see this suit as necessary to combat the threat of federal control of private land use. We are committed to supporting our members and safeguarding the growth of the aggregates industry.’
Mr Johnson went on to note that even the Army Corps of Engineers, another federal agency listed as co-authors of the WOTUS rule and charged with its enforcement, recently said it is legally and technically unjustified and unworkable.
According to Mr Johnson, the Corps documents show that the main regulator of the rule and the NSSGA share comments and concerns about the rule, including the regulation of dry creek beds and isolated ponds and wetlands that have no impact on downstream waters.
The NSSGA’s legal challenge to the rule contends that it is ‘an opaque and unwieldy regulation that leaves the identification of jurisdictional waters so vague and uncertain that plaintiffs and their members cannot determine whether and when the most basic activities undertaken on their land will subject them to drastic criminal and civil penalties under the CWA’.
The suit also claims that the EPA ‘subverted the notice-and-comment process by, among other things, failing to seek comment on scientific reports relied on in the rule and on major revisions of the proposed rule, conducting an inadequate economic analysis, and engaging in an unprecedented advocacy campaign during the comment period that demonstrated a closed mind to comments.’
The NSSGA has joined business and agricultural groups in the lawsuit, including the American Road and Transportation Builders Association, National Association of Manufacturers, National Association of Homebuilders, American Farm Bureau Federation and the National Mining Association, among others.
Mr Johnson added: ‘It speaks volumes that 30 states have initiated their own, separate lawsuits to challenge WOTUS, as the EPA’s actions clearly violate federal law as well as states’ rights.’
