Transcript U.S. Mining: Challeneges and Benefits of the Economy`s Hidden Gem

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U.S. Mining: Challenges & Benefits
Of The Economy’s Hidden Gem
July 24, 2013, Colorado Springs, CO
Karen Bennett, Counsel
Hunton & Williams LLP
Legal and Regulatory Challenges
• Tactics for Increasing Federal
Regulatory/Enforcement Role
– Novel interpretations of existing authorities
• Mingo Logan CWA Section 404 Veto
– Creating new roles under other statutes
• NMA v. Perciascepe
• Changing Policy Through Guidance and Studies
– Appalachian Coal Mining Guidance
– Bristol Bay Watershed Study
– Waters of the United States Proposed Guidance
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Clean Water Act – Federal/State Balance
• Established national goal to restore the Nation’s
waters
• Preserved primary responsibility and rights of
States to protect, plan and develop land & water
resources
• Consult with EPA regarding exercise of authority
• States make water quantity decisions
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Important Legal Challenges
• Mingo Logan Coal Co. v. U.S. EPA
– Section 404(c) unambiguous - EPA may withdraw
Corps specifications “at any time”
– Petition for en banc rehearing – June 7, 2013
– Cert Petition?
• Amicus Brief – States should express concerns
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Important Legal Challenges (cont.)
• NMA v. Perciasepe
• Federal District Court
– EPA’s Mining Guidance was “legislative rule” in violation of
the APA
– Imposed a new de facto water quality standard on states in
violation of the CWA
– Superceded the proper role of state regulatory authorities in
issuing permits under CWA Section 402
– Invaded the SMCRA permitting process, over which
Congress gave states exclusive regulatory authority
• Government Appeal Pending in D.C. Circuit
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Expanding Federal Jurisdiction
• Waters of the United States – Guidance or
Rule?
– Proposed Guidance
• Applies to all sections of the CWA
• Reaches ephemeral, isolated, and ditches
• Similarly situated
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Karen C. Bennett
Hunton & Williams LLP
2200 Pennsylvania Avenue, N.W.
Washington, DC 20037
(202) 955-1958
[email protected]
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