California and EPA Tussle Over Water-Quality Protections

People fish along the Sacramento River in the San Joaquin-Sacramento River Delta, near Courtland, Calif. (AP Photo/Rich Pedroncelli)

(CN) — A federal judge denied a coalition of 18 states and 2 major cities a preliminary injunction Friday, which would have prevented the Trump administration from removing protections from temporary streams, wetlands, ponds and other small water bodies.

U.S. District Court Judge Richard Seeborg said the plaintiffs, which included the state of California, failed to show they were likely to prevail on the merits of their claims, meaning the Environmental Protection Agency is poised to update its policy regarding the enforcement of the Clean Water Act, which protects water quality, habitat and drinking water standards for millions of Americans.

Seeborg accepted the argument from the Department of Justice lawyers made during a lengthy and combative hearing on Thursday. Jonathan Brightbill, a government lawyer, argued that the EPA’s new policy did not violate the law and that California and the other states were confusing policy differences with legal transgressions.

Seeborg agreed.

“A policy change may be permissible simply because there has been a change in administrations,” Seeborg wrote in his 15-page decision. “The requirement is only that agencies must explain the basis for their change, and defendants have adequately done so here.”

Lawyers for the plaintiffs attempted to cast the EPA as violating their fundamental mission through the promulgation of the new rule and that it was arbitrarily conceived.

“Their explanation for the rule is contrary to all the detailed evidence they had accumulated previously,” said Timothy Hoffman, arguing on behalf of the states on Thursday. “They are excluding waters that scientists have found necessary to protect.”

But Seeborg disagreed.

“Plaintiffs’ arguments that the agencies disregarded the scientific evidence they previously had gathered is ultimately a policy disagreement as well,” he wrote.

Brightbill also said the states were not under the threat of immediate harm and as such should not be granted a preliminary injunction.

“They have laundered through their experts their own interpretation of the record,” Brightbill said. “These are policy disagreements. And in this area, an extreme amount of deference is owed to the agencies who are evaluating scientific evidence pertinent to their expertise.”

The central question then is whether the EPA violated administrative law when it finalized the New Navigable Waters Rule in April, or whether the agency properly evaluated the scientific record and made a policy decision that simply differs from the preferences of the plaintiffs.

The rule made water quality standards set forth in the Clean Water Act, the landmark law intended to protect drinking water for Americans, along with habitat for fish and other creators, only apply to navigable waterways.

Ephemeral streams, more common in the American West, wetlands, ponds and other smaller waterways would no longer be covered under the Clean Water Act, should the Trump rulemaking survive the legal challenge.

Seeborg was only deciding whether to issue a preliminary injunction that prevented implementation of the rule, which is set to take effect on Monday.

Brightbill said the arguments being aired during the hearing were better suited for a summary judgment hearing, where both sides could delve further into the administrative record.

He also argued the new rule would only affect a minuscule amount of EPA permits, a total of 2.5%, meaning the threat of widespread harm as a result of the agency shift was infinitesimal.

“The rule provides clarity and predictability for state and tribal jurisdictions,” Brightbill said.

Tatiana Gaur, arguing on behalf of the plaintiffs, said if the rule is put into place, it will automatically withdraw protections from 4.8 million miles of streams and millions of acres of wetlands across the country.

“If there is upstream pollution coming from one of these cites, the states lose the ability to regulate it,” Gaur said.

For instance, in New Mexico, there is a significant amount of ephemeral streams, or temporary waterways that exist during the rainy season but vanish during the dry season. If the federal government refuses to regulate the large number of such waterways in the state, New Mexico would be forced to create its own regulatory program on the fly, Gaur said.

“The state of New Mexico completely relies on the federal government to provide protection,” Gaur said.

Brightbill said the selection of New Mexico was misleading, based on its high concentration of ephemeral streams, and that if Seeborg were to grant an injunction, he should tailor it to only include states that would suffer harm by the rule.

He argued California, for instance, was not downstream of any states and therefore had little standing to complain about a rule that focused on upstream pollution as the main source of irreparable harm.

“You can’t just join arms with other states and find somebody who checks this box and somebody who checks that box,” Brightbill said.

But Hoffman noted that much of Southern California received water from the Colorado River that originates several hundred miles away and travels through several states before reaching the Golden State.

It’s why the EPA’s new rule that defers mightily to states is defective, Hoffman said.

“Congress actually passed the (Clean Water Act) to remedy uneven state enforcement,” Hoffman said.

Seeborg said he would rule on whether to grant a preliminary injunction by Monday.

“I have much to do,” he said before signing off.

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