Thirty-One States|Fight Clean Water Rule

(CN) – Attorneys general from 31 states asked the Environmental Protection Agency and Army Corps of Engineers to delay implementation of a Clean Water Act rule for at least 9 nine months for judicial review.
     The rule defines “Waters of the United States” under the Clean Water Act. The states claim it asserts federal jurisdiction over streams, wetlands and other water bodies previously considered to be under state jurisdiction.
     The EPA cited the need for clean drinking water and clean water as an economic driver as the impetus for its new rule, and 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 EPA said in a May 27 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.”
     Within six weeks of that announcement, 31 states filed five lawsuits in federal courts throughout the country, claiming the rule trampled state sovereignty.
     “The increase in EPA’s and ACOE’s jurisdiction comes at the direct expense of states – which previously had exclusive jurisdiction over state waters,” the July 28 letter states. “Such action exceeds the statutory authority of Congress in enacting the Clean Water Act under the Commerce Clause and infringes upon the states’ rights under the Tenth Amendment.”
     The rule is scheduled to take effect Aug. 28. The states want it delayed until the rule has gone through judicial review.
     They claim the rule “will become effective well before courts have the opportunity to resolve the merits of the significant pending challenges.”
     “This schedule will cause immediate harm to the states because their delegated authority under the Clean Water Act, own regulatory programs governing state waters, and local industries will be affected by increased permitting and compliance requirements under the EPA’s and ACOE’s sweeping new asserted jurisdiction,” the 3-page letter states.
     The EPA said in its May 27 statement that the rule “does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.”
     “All this rule does is put Clean Water Act jurisdiction back to about where it was under the Reagan administration,” Jessica Dexter, staff attorney for the Environmental Law and Policy Center, told Courthouse News. “It adds clarity where there has been a massive confusion for over a decade. That confusion leads to litigation over what waters are covered by the Clean Water Act, which is not an effective use of resources for anyone involved.”
     Dexter illustrated the importance of the rule by posing a scenario in which poison ends up in a neighborhood stream. “If that stream is not found to be within Clean Water Act jurisdiction, then the EPA has no recourse,” she said. “Until this new rule comes into effect, the jurisdictional status of thousands of streams and wetlands remains in question, and we are at risk of losing those waters entirely.
     “States remain free to enact their own additional protections for waters within their boundaries, just as has always been the case. What these attorneys general are really asking for here is the right to allow waters in their states to be polluted and destroyed.”
     North Dakota Attorney General Wayne Stenehjem led the objecting states, joined by attorneys general from Arkansas, South Dakota, Georgia, Louisiana, West Virginia, Idaho, Arizona, Utah, Wyoming, Colorado, Mississippi, Florida, Indiana, Montana, Texas, Wisconsin, Ohio, South Carolina, Nebraska, Alabama, Missouri, Tennessee, Kentucky, Michigan, Alaska, Kansas, Nevada, Oklahoma, New Mexico and North Carolina.

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