2020 legislative session is here.  ESSB 5322 has been X filed, meaning they have agreed to not advance that bill any further. INSTEAD have introduced SB 6149, a carbon copy of ESSB 5322. This bill was introduced on Jan 8th 2020 and refered to Enviroment and Energy on Jan 13th 2020. As a small scale miner, I’d like to bring an issue to your attention because the federal agencies have repealed the 2015 Clean Water Rule (described below).  The repeal affects the new SB 6149 (which is in the rules committee for the third reading).  No testimony in front of the committee is scheduled at this time.  The only thing we small scale miners can do is contact the members of the rules committee and inform them that the state is already "In full compliance with the Clean Water Act".  Suction Dredging does not add pollutants, we do not fall under the 401 or the 402 of the Clean Water Act (CWA).  We fall under the 404 of the CWA, Nationwide permits 18, 19 and the 44.  And with decision made to go back to the pre 2015 CWA. 
On October 22, 2019, the Environmental Protection Agency (EPA) and the Department of the Army (“the agencies”) published a final rule to repeal the 2015 Clean Water Rule:  Definition of “Waters of the United States” (“2015 Rule”), which amended portions of the Code of Federal Regulations (CFR), and to restore the regulatory text that existed prior to the 2015 Rule.  The final rule will become effective on December 23, 2019.  The agencies will implement the pre-2015 Rule regulations informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice. 
The agencies are repealing the 2015 Rule for four primary reasons.   
   • First, the agencies conclude that the 2015 Rule did not implement the legal limits on the scope of the agencies’ authority under the Clean Water Act (CWA) as intended by Congress and reflected in Supreme Court cases, including Justice Kennedy’s articulation of the significant nexus test in Rapanos.  

   • Second, the agencies conclude that in promulgating the 2015 Rule the agencies failed to adequately consider and accord due weight to the policy of the Congress in CWA section 101(b) to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” and “to plan the development and use . . . of land and water resources.” 33 U.S.C. 1251(b).  

   • Third, the agencies repeal the 2015 Rule to avoid interpretations of the CWA that push the envelope of their constitutional and statutory authority absent a clear statement from Congress authorizing the encroachments of federal jurisdiction over traditional State land-use planning authority.  

   • Fourth, the agencies conclude that the 2015 Rule’s distance-based limitations suffered from certain procedural errors and a lack of adequate record support.  The agencies find that these reasons, collectively and individually, warrant repealing the 2015 Rule. 
With this final rule, the regulations defining the scope of federal CWA jurisdiction will be those portions of the CFR as they existed before the amendments promulgated in the 2015 Rule. 
In short, this determination makes the reasons that SB 6149 and any WDFW rule changes that affect small scale miner interaction with the CWA no longer applicable (the state and the miners are already compliant) and these tasks should be removed from the Washington State legislative efforts – we have much bigger issues to address. 


Comment on SB 6149....https://app.leg.wa.gov/billsummary?BillNumber=6149&Initiative=false&Year=2019


We are currently working on a solution to your questions about the new rules. Please be patient there are quite a few things in the works that cannot be shared at this time. 

Thank You.


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