Battle Over New Water Rules Spreads to D.C.

     (CN) — A mining association filed a separate lawsuit in Washington, D.C., to preserve its claims against the federal government’s new water rules, given the contentious battle over jurisdiction raging in the Sixth Circuit.
     The American Exploration & Mining Association, or AEMA, sued the U.S. Environment Protection Agency on Thursday over the agency’s new water rules for a second time.
     Last year, the EPA redefined “waters of the United States” under the Clean Water Act to assert federal jurisdiction over streams, wetlands and other water bodies previously considered to be under the states’ sole jurisdiction.
     The EPA cited the need for clean drinking water and clean water as an economic driver as the impetus for its new rule, as well as U.S. Supreme Court rulings in 2001 and 2006 in which justices disagreed about which waters were covered by the Act.
     “About 117 million Americans – one in three people – get drinking water from streams that lacked clear protection before the Clean Water Rule,” the agency said in a statement about the new rule. “The health of our rivers, lakes, bays, and coastal waters are impacted by the streams and wetlands where they begin.”
     Thirty-one states immediately filed suit against the agency, claiming the rule trampled state sovereignty.
     Their actions have been consolidated in the Sixth Circuit with numerous other lawsuits filed by mining and energy corporations, environmental groups, commercial lobbying organizations, farming groups and railroads.
     In February, the Cincinnati-based appeals court ruled it had jurisdiction to hear the case, but the judges were highly divided, with each writing their own opinion.
     Judge Richard Griffin cast the deciding vote in the Sixth Circuit’s ruling, but said he only voted with Judge David McKeague because he is required to follow binding precedent — National Cotton Council of America v. EPA, which Griffin said he did not believe was correctly decided.
     Judge Damon Keith dissented, agreeing with Griffin’s analysis, but not his reading of National Cotton.
     AEMA said it was filing suit in Washington with the same claims out of an “abundance of caution” because “there is substantial uncertainty whether the courts of appeals have jurisdiction over the final rule.”
     “In light of this uncertainty and because it may ultimately be determined that the Sixth Circuit lacks jurisdiction over the final rule, AEMA files this complaint for declaratory and injunctive relief, as a protective measure in light of the one-year statute of limitations in the [Regulatory Flexibility Act, or RFA],” the association said in its 29-page lawsuit.
     The complaint reiterates claims previously made in the Sixth Circuit that the EPA’s rule-making was arbitrary and capricious, exceeded its statutory authority and was otherwise not a logical outgrowth of prior legal definitions.
     AEMA is represented by Steven J. Lechner with Mountain States Legal Foundation in Lakewood, Colo.

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