CHARLESTON, W.Va. -- The US EPA and the U.S. Army Corps of Engineers hosted a listening session in Charleston on May 14th to solicit public input on how “Waters of the United States” (WOTUS) should be defined under the Clean Water Act.
WVCA Vice President Jason Bostic, spoke at the session, providing the WVCA’s position on the issue.
“Under the current interpretation of WOTUS, virtually every activity related to coal extraction in West Virginia is subject to Section 404 jurisdiction,” Bostic said. “As you know, this has the effect of federalizing a project- that is, subjecting it to not only 404 jurisdiction but attaching other federal regulatory programs. It also provides the federal judiciary with authority over mining operations.
“The impact of federalizing a project cannot be overstated: professional opponents to energy production more concerned with political appearance than practical environmental protection can bypass state programs and run directly to federal court simply because the issuance of the 404 permit is a ‘federal action.’’
Bostic said that 93% of the land and minerals in West Virginia are in private hands – private and state land where owners have paid property and mineral taxes for decades to support state environmental regulatory programs.
“West Virginia maintains some of the most complex and complicated programs in the country. For these programs the Legislature made the decision to dedicate significant state dollars and resources to the effective regulation of mining with appropriate oversight from the federal government. The key term being oversight. Federalizing a project through a sprawlingdefinition of WOTUS is not simply oversight. It is superimposing an entire regulatory and administrative regime over the extensive one maintained by West Virginia to regulate activities on state and private property.”
Bostic said that The Trump administration and this current rulemaking effort provides the opportunity to resolve these situations and that any definition of WOTUS must faithfully implement the Supreme Court’s direction from the Sackett case, a 2023 case in which SCOTUS narrowed the scope of WOTUS, significantly impacting the EPA’s regulatory authority over wetlands and other water bodies.
“While the interpretation and application of WOTUS has been incorrect and maintained by Washington level bureaucrats more interested in frustrating energy development than encouraging it, our observations here should not be interpreted as criticism of local Corps of Engineers staff, particularly the Huntington District,” Bostic said. “Of 132 state and federalagencies with some level of authority over the coal industry, the Huntington District, as the lead district for West Virginia, is the most technically proficient, professional, reasonable and punctual of all the federal regulatory agencies.”
Bostic urged the agencies to finally issue a WOTUS interpretation that is precise, easily understood, consistent with Congressional intent and under the clear guidance provided by the nation’s highest court that recognizes the comprehensive environmental permitting and regulation programs maintained by primacy states like West Virginia.”