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Water Quality

Our positions

EMA supports regulations that ensure clean water for our members as well as the communities they live in. There must be clear, legally sound, and practical definitions of which waters are regulated by the federal government under the Clean Water Act, which are known as “Waters of the United States.” These definitions need to lawful while also workable for many industries. Likewise, any regulations governing activity near or on those waters must also be effective, practical, and legally sound. Neither the definition of a Water of the U.S. nor any regulations promulgated for their protection should be used to expand the power of the federal government or arbitrarily hinder access to or activities near waterways which are not in fact within federal jurisdiction.


Waters of the United States (WOTUS)

The Clean Water Act, passed in the 1970s, gives EPA and the Army Corps of Engineers jurisdiction to regulate “Waters of the United States,” including “traditionally navigable waterways” and those that impact interstate commerce. However, in the decades since, there has been continuous debate and controversy over the limits of the definition of WOTUS. In 2015, EPA issued a new rule that drastically increased the agency’s regulatory reach by expanding the definition of WOTUS to include even areas that are ordinarily dry land. The rule was immediately halted by the courts in more than half of U.S. states. The rule was repealed in 2020 and replaced with the Navigable Waters Protection Rule, which narrowed the definition of WOTUS and provided clear, certain rules.

The new rule was rescinded in January 2023, and a new WOTUS rule was put in place that expanded the jurisdiction of the federal government over wetlands on private property, much like the 2015 rule. However, in May of 2023, the U.S. Supreme Court ruled that much of the rule was unconstitutional and exceeded the EPA and Army Corps’ authority . EPA again revised the rule in September 2023 to comply with the letter of the Court’s ruling, but still fails to provide the clear, durable, and workable WOTUS definition the minerals industry needs to provide the essential minerals that are vital to everyday life.

EMA is a member of the Waters Advocacy Coalition, which advocates to stop the regulatory over-reach of EPA’s WOTUS rules. After the Supreme Court deemed much of the January 2023 WOTUS rule unconstitutional, the coalition now urges the federal government to deliver a clear and transparent WOTUS rule that both protects the nation’s waterways and supports economic growth.

Hazardous Substance Worst Case Scenario Spill Rule

In March 2024, EPA issued the Final Rulemaking on Clean Water Act Hazardous Substance Facility Response Plans, which requires certain facilities to develop facility response plans for a worst-case discharge of Clean Water Act hazardous substances or threat of such a discharge. A worst-case discharge is the largest foreseeable discharge in adverse weather conditions, including extreme weather conditions due to climate change. Facilities subject to the rule are required to prepare response plans in the event of worst-case discharges, or threat of such discharges, and submit them to EPA.