Mining companies seeking to dump dredge or fill material into nearby streams and waterways or dig up metals in sensitive headwaters will likely face fewer federal Clean Water Act restrictions under a proposal the Trump administration unveiled on Monday.
A draft rule from EPA and the Army Corps of Engineers would scale back the number of waterways and wetlands that fall under the federal government’s jurisdiction, in some cases leaving mineral- and coal-rich states — many with weaker protections — in charge.
In turn, fewer companies would be required to obtain permits under Sections 402 and 404 of the Clean Water Act before disposing of mining waste and byproducts into those waterways, said Mark Ryan, a former Clean Water Act attorney for EPA Region 10 who previously worked on mining projects.
“It’s likely more mines will be freed from 404 permitting requirements,” Ryan said.
The proposal marks significant regulatory shift that would likely to be amplified by President Donald Trump’s ongoing efforts to juice domestic mining of everything from copper in Arizona to coal in Appalachia. The administration has opened large swaths of public land to mining, fast-tracked permitting and even taken private equity stakes in companies to boost production.
But Ryan emphasized that that the exact impact of the rule will hinge on how federal officials define “waters of the U.S.,” a prospect that remains murky given the language in the draft rule.
Trump officials Monday told reporters that the proposal aligns with Sackett v. EPA, a 2023 Supreme Court ruling that asserted that only wetlands that directly touched a relatively permanent waterway — like a river or lake — fell under the scope of the Clean Water Act.
But the agencies also added more restrictive language. Under the proposal, which is open to public comment for 45 days, wetlands must contain a “surface water” at least for the duration of the “wet season” to be federally protected. But what constitutes a “wet” season is unclear, and EPA in its proposal states that it intends to base its decision off metrics from the web-based water-budget interactive modeling program, or WebWIMP.
“Farmer Joe is not going to have access to that model,” said Ryan. “EPA claims the rule is going to be easy to understand, but … they’re going to use a sophisticated model to figure out what a wet season is that that seems really at odds.”
EPA Administrator Lee Zeldin on Monday acknowledged fewer waters will be regulated by the federal government.
Just 19 percent of the wetlands in the contiguous U.S. that have been mapped by the federal government would fall under federal protection, according to a regulatory impact analysis. Yet Zeldin insisted the that those waters would still have oversight, and that the rule responded to landowners, farmers and ranchers across the country and aligns with the nation’s highest court.
“Just because a particular drop of water or waterway somewhere in the United States wouldn’t be covered by the federal government, doesn’t mean it’s not regulated,” said Zeldin.
Larry Liebesman, a senior adviser at Dawson & Associates, an environmental permitting firm, agreed the proposal could ease permit requirements for companies seeking to expand their mining operations, and possibly limit the scope of state reviews under Section 401 of the Clean Water Act, especially in the arid West. Liebesman, a former Justice Department attorney, represents the aggregate mining industry on matters tied to WOTUS.
“What this means is that companies that are planning mining operations, or involved in planning mining operations, will have probably fewer permits that they need to get, and perhaps in areas where they’re mining, where it’s not particularly wet, they could get total exclusion from Clean Water Act jurisdiction,” said Liebesman.
States in charge
The mining sector and champions on Capitol Hill immediately applauded the rule and blasted previous iterations as regulatory overreach, while environmental groups warned the draft will degrade protections for valuable wetlands and sensitive habitats.
“Companies operating across all stages of mining have worked to move projects forward in a regulatory environment that has most closely resembled a pingpong match with ever-changing rules,” said Rich Nolan, president and CEO of the National Mining Association. “Our urgent minerals and energy needs are clear, and the regulations that allow us to meet those needs should be equally clear.”
Yet the exact reach of federal water protections will hinge on how agencies define key terms in the final rule and possible future court action.
Ryan noted that the proposal, for example, doesn’t define “wet season,” and courts no longer give deference to agencies to interpret their own rules. That, he said, could generate significant litigation around the rule’s implementation.
Liebesman agreed that a “wet season” is not easily defined, noting that areas in the West may have large rain events but only for a specific amount of time. EPA and the Army Corps, he added, asked for comment on whether they need to define such a term and laid out tools for doing so.
Zeldin on Monday said the agency is soliciting comments to decide whether a “wet season” will be based on a number of months or possibly on factors like when precipitation begins to accumulate.
Overall, the move to roll back federal jurisdiction could have the biggest ripple effect in the arid West, where the Trump administration is pushing to boost production of copper, uranium, critical minerals, rare earths and other materials.
About half of states do not have state-level policies to protect or regulate wetlands and rely on the federal Clean Water Act to do so, including Utah, Arizona, Texas and Nevada. Speaking to reporters on Monday, Jess Kramer, EPA assistant administrator for water, said nothing will preclude states from adding more regulations or using those already in place.
Concerns about water have plagued projects in Utah, one of the driest states in the nation. Despite local concerns about drought, the Trump administration recently approved Lisbon Valley Mining’s expansion of an open-pit copper mine on more than 1,100 acres of public land there.
Mining is also taking off in Arizona, where federal officials estimate just 2.4 percent of wetlands would likely be “wet” enough to be federally regulated. The state is home to what’s slated to be the largest copper mine in the nation, as well as a host of critical mineral projects like South32 Hermosa’s $2.16 billion manganese and zinc mine in the Patagonia Mountains.
While some states like Maryland and Michigan have water quality protections in place for wetlands and waterways, many — especially those across the West — don’t have programs in place and may lose all protections for isolated streams, vernal pools and other water features, said Liebesman.
“A lot of states just don’t have it,” said Liebesman. “A lot of wetlands in those areas will lose protection.”
