Rock to Road

NSSGA sues EPA over water regulation

August 4, 2015  By  Andrew Macklin

August 4, 2015 – The National Stone, Sand and Gravel Association in the U.S. has entered a legal battle with the U.S. Environmental Protection Agency over a new policy involving water management.

The NSSGA filed a lawsuit as part of a coalition of business organizations challenging the Environmental Protection Agency’s (EPA’s) Waters of the United States (WOTUS) rule. WOTUS radically expands federal jurisdiction under the Clean Water Act and poses serious concerns for the aggregates industry and the nation.

Prior to the lawsuit, NSSGA actively engaged the misguided EPA by highlighting the flaws of the proposed rule both in person and through extensive comments. Those comments and concerns were largely ignored and EPA will enact the final WOTUS rule on Aug. 28. As a result, 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. These costs 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, NSSGA president and CEO. “We tried to work with 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.”


Johnson noted 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. The Corps documents show that the main regulator of the rule and NSSGA share comments and concerns about the rule, including the regulations of dry creek beds and isolated ponds and wetlands that have no impact on downstream waters.

NSSGA’s legal challenge of 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 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.”

NSSGA joins business and agricultural groups in this suit, 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.

“It speaks volumes that 30 states have initiated their own, separate lawsuits to challenge WOTUS as EPA’s actions clearly violate federal law as well as states’ rights,” Johnson added.

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