Clean Water Rule Faces Dueling Challenges

     (CN) – An EPA proposal to expand Clean Water Act protections to watersheds and streams produced dueling lawsuits, with miners claiming it goes too far and environmentalists saying it does not go far enough.
     The National Resources Defense Council sued the U.S. Environmental Protection Agency and the Army Corps of Engineers on Friday in District of Columbia Federal Court.
     The American Exploration & Mining Association sued the same defendants in the same court on the same day.
     “We think the Clean Water Rule is a good rule that could, and should, be even better,” NRDC attorney Jen Sorensen told Courthouse News. “We will continue to work to thwart efforts in Congress and the courts to weaken or kill it, because Americans want more, not less, protection for their drinking water supplies and the water bodies their families swim in, fish from, and boat on.
     “Although it is a big step forward, we believe the rule, as written, leaves some waters inadequately protected without justification, and we are suing to make sure the rule protects the waters it should and treats like waters in a like manner. We are also seeking to intervene in lawsuits that challenge the rule as too strong.”
     The Clean Water Act tasks the EPA with restoring and protecting the nation’s navigable waters from pollution by regulating the discharge of pollutants and establishing quality standards for surface waters. Under the act, navigable waters are defined as “the waters of the United States, including territorial seas.”
     But two Supreme Court decisions cast uncertainty on which water bodies are protected under the Act’s scope.
     In Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers (2001), the Supreme Court held that EPA could not extend protection to isolated, non-navigable water bodies just because migratory birds use them.
     Rapanos v. United States (2006), concerning Michigan wetlands, produced two tests to determine eligibility for protection. Writing for the plurality, Justice Antonin Scalia held that the navigable waters definition applies to permanent water bodies. Justice Anthony Kennedy concurred but wrote in a separate opinion that wetlands qualify for protection if they “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”
     To clarify the matter, the EPA and the Corps of Engineers issued a proposed rule in April 2014, modifying the “waters of the United States” definition to include tributaries and adjacent waters. The rule defined tributaries as waters that supply water to another body and adjacent waters as water bodies next to or bordering another body, including floodplains and riparian areas.
     After receiving public comment, the EPA issued its final science report in January this year, asserting that tributary streams, wetlands, and open waters are “physically, chemically, and biologically connected to downstream rivers” and play important functions in determining downstream water quality.
     The EPA also issued an economic analysis, which concluded that regulated entities such as state and local governments and resource extraction industries would see increased costs in “permit application expenses, compensatory mitigation, and installation of best management practices,” but that the rule would have no significant impact on small entities.
     The agencies issued the final rule on June 29. Applying Justice Kennedy’s significant-nexus standard, the rule determined that water bodies qualify as “waters of the United States” if they individually or in conjunction with other water bodies affect the “chemical, physical, or biological integrity” of navigable waters or territorial seas.
     The rule established eight categories of waters, six of which are guaranteed protection under the Clean Water Act: navigable waters, interstate waters, territorial seas, impoundments of water, tributaries, and adjacent waters. Two additional categories whose protection eligibility will be determined on a case-by-case basis are features such as Western vernal pools and Texas coastal prairie wetlands, and certain floodplain waters.
     Both sets of plaintiffs claim the final Clean Water Rule violates the Clean Water Act and the Administrative Procedures Act, but for very different reasons.
     The American Exploration & Mining Association claims the agencies’ final economic analysis failed to study the impacts of increased Clean Water Act regulation on small businesses, such as its members. The Spokane-based association says on its web page that it has 2,500 members, in 42 states, 90 percent of which are small businesses or individuals.
     It claims the agencies improperly chose to use the existing regulations baseline, based on regulations challenged in the aforementioned Supreme Court cases, rather than the recent practices baseline, based on the Rapanos decision, despite acknowledging that the recent practices baseline would be more useful in determining the rule’s impact on regulated entities.
     “Defendants provide no explanation for choosing the existing regulations baseline over recent practices baseline, which provides the closest approximation of the final rule’s economic impact,” the association says in its complaint.
     It also took issue with adding floodplains water, claiming the agencies failed to allow public comment on this change from draft to final rule.
     The environmental groups claim the final rule improperly excludes several types of water bodies, including water used for farming, waste treatment systems, and water more than 4,000 feet from the high tide line, which should have been given protections because they meet the “adjacent waters” definition.
     “There is no scientific rationale for treating these waters differently from other adjacent waters,” the NRDC says in its complaint.
     It claims that excluding water bodies that meet the expanded definition of “waters of the United States” even though the Corps of Engineers has determined that those waters meet the significant-nexus standard is arbitrary and capricious.
     The Corps of Engineers declined to comment on the lawsuits.
     The EPA did not immediately return requests for comment Monday.
     Both plaintiffs seek declaratory judgments that the defendants violated the Clean Water Act and the Administrative Procedures Act.
     The environmentalists want the “defective portions” of the final rule vacated and remanded, or the agencies ordered to bring those portions into compliance with the law. They also ask that acceptable portions of the rule be put into effect while the other portions are reconsidered.
     The miners ask the court to vacate and remand the final rule and “stay the effective date of the final rule.”
     The miners are represented by Steven Lechner with Mountain States Legal Foundation of Lakewood, Colo., who did not immediately return a requests for comment.
     Co-plaintiffs in the environmentalists’ lawsuit include the National Wildlife Federation, Georgia nonprofit One Hundred Miles, and the South Carolina Coastal Conservation League. NRDC staff attorneys are assisted by attorneys with the Southern Environmental Law Center of Charleston, S.C.

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