Wireless Password: 9166703926

July 24, 2013, Colorado Springs, CO Karen Bennett, Counsel Hunton & Williams LLP

U.S. Mining: Challenges & BenefitsOf The Economy’s Hidden Gem

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

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• 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

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.)

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• 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violation of the CWA – Superceded the proper role of state regulatory authorities in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

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

kbennett@hunton.com

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Wireless Password: 9166703926