Mining News: EPA revisits its jurisdiction definition

The agency’s restatement of jurisdiction over ‘waters of the United States’ may be the most stringent zoning laws in the nation

J. P. Tangen

For Mining News

With the Ebola scare and the ISIS incursions dominating the international news and the various races for control of the Senate sucking all of the air out of the room domestically, it is easy to lose sight of the serpent slithering across America hissing and rattling and threatening to wreak destruction on all who would get in its way. The snake in the woodpile is the Environmental Protection Agency, and its current insidious objective is to leverage its dominion over all land use in the United States through redefinition of congressional intent.

In 1972, Richard Nixon, under threat of a veto override, signed into law what we now call the Clean Water Act. The statute defined the water-related jurisdiction of the newly-established EPA to the “waters of the United States” without significant circumscription. Initially, the responsibility for the regulation of waters was shared with the U.S. Army Corps of Engineers, which had long had the responsibility for ensuring that our rivers and harbors were secure for commerce. Over time, the role of the Corps has been incessantly marginalized to the point where the agency’s permits are now not only at risk of being overruled, but it is cowed with the mere threat of the possibility.

The definition of what constitutes the waters of the United States, or WOTUS, has long been controversial, and has been the subject of several trips to the Supreme Court. Unfortunately, our current Supreme Court consists of four justices who never saw a regulation they didn’t like and four justices who never saw a regulation they did like, and a chief justice who is fond of carving his own path, wherever it may lead.

Rather than handing down a clear majority position that would put a stop to EPA’s expansive global view, the high court has literally invited the agency to define its own limits. In response, EPA has generated an 88-page, tightly-written document that in essence recites that WOTUS comprises anything that is wet, that may be wet in the future or that ever has been wet over geological time.

The pure and simple implication of this redefinition of EPA’s jurisdiction over WOTUS is that anyone who wants to do anything anywhere, with very few narrow exceptions, is at risk of having their project barred or, once built, being forced to abandon investments made in reliance on the presence of those permits.

The regulations, now currently in draft, are out for public comment and, among many other interested entities, the Alaska Miners Association’s overtaxed federal oversight committee is in the process of generating substantive comments on the redefinition of WOTUS by the Nov. 14 deadline.

As is the case with innumerable other federal initiatives, readers of this column are urged to participate in the comment process and shoulder a portion of the load through being heard at AMA federal oversight committee meetings.

Alaskans in general, and Alaskan miners in particular, should be very concerned about how the current public process unfolds because Alaska hosts more WOTUS than any other state, by far. If one considers that permafrost qualifies as WOTUS and if it is taken as true that permafrost can be found in as much as 82 percent of the state’s land mass (by one estimate), the extent of this regulatory coverage is ponderous.

Permafrost, alone, is not the extent of the concern, however. It does not push the envelope to note that the presence of seashells on a mountaintop constitutes evidence to EPA that WOTUS once extended to that location. Under the revision, wherever you are working or considering operating, you may soon be at an expanded risk of having your activities more intensively regulated by EPA.

Mining operations are notoriously heavy users of closed water systems and fully understand the need for wastewater treatment; nonetheless, the fact that an operation must secure a wastewater permit to operate coupled with the fact that such a permit may be revoked even after it is issued and in place if EPA concludes that WOTUS might be adversely impacted, should be of grave concern.

The serpent that we know as EPA is pernicious and can strike anyone at any time. Alaska miners are at great risk. When one lies down with a snake, it is best to keep an eye on its head.