EPA Water Rule Heads To Court

Let the litigation begin.

The ink has barely dried on the federal government’s new Clean Water Act regulation, but stakeholders are already suing over the new standards.

A group of attorneys general from conservative and conservative-leaning states is contesting the recent Clean Water Act update on the grounds that it represents government overreach. The suit claims the new regulation is “an attempt by two agencies of the federal government to usurp the States’ primary responsibility for the management, protection, and care of intrastate waters and lands.”

West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, Wisconsin, and Georgia all joined the suit against the new mandate from the U.S. EPA and Army Corps of Engineers. The attorneys general from these states are all Republican, “except Kentucky Democrat Jack Conway, who is running for governor,” The Atlanta Journal-Constitution reported.

The attorneys filed a federal lawsuit “that could wind up in the U.S. Supreme Court,” The Journal-Constitution reported.

“Filed in federal court in the Southern District of Georgia, the suit challenges a new regulation by the Environmental Protection Agency and U.S. Army Corps of Engineers that would allow the government to regulate tributaries to rivers and streams under the Clean Water Act,” the report said.

In addition, “18 other states filed three similar suits over the highly contested rule, which the states claim unfairly expands the definition of ‘waters of the United States’ protected by the Clean Water Act, defies previous U.S. Supreme Court rulings, oversteps states' rights to regulate their own waterways and harms businesses and landowners,” Law 360 reported.

The complaints do not end there. Even proponents of environmental regulation give the rule a mixed review. Despite praising many aspects of the new rule, a coalition of environmental groups including the Center for Biological Diversity is criticizing it on the grounds that it does not go far enough. The groups say the regulation is rife with concessions to industry:

The new rule reaffirms longstanding federal protections for some types of waters, but largely as a result of industry pressure, arbitrarily exempts and removes safeguards for critically important streams, wetlands and other waterways, many of which had been protected since the 1970s. These unprecedented exemptions are contrary to clear scientific evidence demonstrating the importance of these waterways for drinking water, recreation, fisheries and wildlife.

For their part, “the EPA and Corps have said that it makes the scope of their jurisdiction narrower than it was under previous regulations,” according to Law 360.

Some stakeholders have spoken out favorably about the new rule, praising regulators for compromise, including local and county elected officials.

West Virginia Rivers Coalition Executive Director Angie Rosser said, per the Charleston Gazette-Mail: “The Clean Water Rule doesn’t go as far as we’d like, but it’s better than no rule at all. Despite its shortcomings, it brings necessary regulatory clarity for our headwater streams… in today’s political climate, great compromise is required to get anything done.”

The EPA argues that the rule is necessary to protect waterways and because Supreme Court decisions make it unclear what the agency may regulate under the Clean Water Act.

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