The Environmental Protection Agency and U.S. Department of the Army has delayed by two years the applicability date of the Obama administration’s 2015 Clean Water Rule.
Conservation groups reacted Tuesday by challenging in court what they say are a suspension of protections under the Clean Water Act by the EPA and the Army Corps of Engineers.
The action, which sets an applicability date of Feb. 6, 2020, is to provide clarity and certainty about which definition of “waters of the United States,” or WOTUS, applies nationwide in response to judicial actions that could result in confusion, the EPA said.
“The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation,” said EPA Administrator Scott Pruitt in a statement.
The Southern Environmental Law Center filed the legal challenge in the U.S. District Court for the District of South Carolina on behalf of American Rivers, Clean Water Action, Defenders of Wildlife, Charleston Waterkeeper, Chattahoochee Riverkeeper, Coastal Conservation League, Friends of the Rappahannock, North Carolina Coastal Federation and North Carolina Wildlife Federation.
“It’s long past time when Congress intended for all of our waters to be fishable, swimmable, and drinkable ─ the Trump administration’s decision will make it impossible to achieve that goal,” said Jennifer Peters, Clean Water Action’s National Water Programs Director. “We’re fighting to ensure the interests of polluters are not put before the interests of everyday people who expect strong Clean Water Act protections for their drinking water sources.”
The lawsuit contends that the EPA and the Corps violated a longstanding law that prohibits agencies from altering basic environmental safeguards without giving the public notice and a chance to weigh in on their decision to eliminate scientifically backed protections for streams and wetlands, according to the law center. The agencies have 60 days to respond to the lawsuit.
“Clean water is a way of life we take for granted in this nation thanks to bipartisan laws passed almost 50 years ago, but large polluters now want to dismantle all our protections,” said Blan Holman, a managing attorney at the law center. “The administration is pretending that pollution dumped upstream doesn’t flow downstream, but its plan puts the water used by hundreds of millions of Americans for drinking, bathing, cooking, and recreation at risk. We are going to court to protect clean water across the country.”
Bob Irvin, president of American Rivers, said that by delaying the Clean Water Rule, the administration is making clear that it has no intention of protecting rivers, wetlands and clean water. “Without the Clean Water Rule’s critical protections, innumerable small streams and wetlands that are essential for drinking water supplies, flood protection, and fish and wildlife habitat will be vulnerable to unregulated pollution, dredging and filling,” he said.
“The Trump administration’s attempt to roll back federal protections for some of the most sensitive wetlands and streams is irresponsible,” said Bob Dreher, senior vice president for conservation programs, Defenders of Wildlife. “All endangered species, from grizzlies in Montana to panthers in Florida, depend upon drinking water for survival. This action will prioritize industry over communities and wildlife and put both at unnecessary risk.”
Todd Miller, executive director of the North Carolina Coastal Federation, said, “We depend on clean water to live, work and play here along the North Carolina coast. With this action, we hope to defend reasonable and prudent regulatory safeguards that are vital to our healthy coastal economy and environment.”
The WOTUS rule, which redefined the scope of where the Clean Water Act applies, had an effective date of Aug. 28, 2015. The U.S. Court of Appeals for the Sixth Circuit’s nationwide stay halted implementation of the rule. On Jan. 22, 2018, the Supreme Court determined that the U.S. Courts of Appeals did not have original jurisdiction to review challenges and, therefore, the Sixth Circuit lacked authority to issue a stay.
The agencies’ latest move maintains the legal status quo of pre-2015 implementation.
“This rule is a rushed political decision that should be based on science, like the Clean Water Rule is,” said Tim Gestwicki, chief executive officer of the North Carolina Wildlife Federation. “Wildlife need clean water and hunters and anglers know that without it, there won’t be ducks to hunt or fish to catch. Folks who love our streams, rivers, and wetlands deserve better.”
The final rule is separate from the two-step process the EPA and Army are currently taking to reconsider the 2015 rule. The public comment period for the Step 1 rule proposing to rescind the 2015 rule closed in September 2017, and those comments are currently under review by the agencies.
EPA and the Army are also reviewing input from state, local and tribal governments and other stakeholders while they work to develop a proposed Step 2 rule that would revise the WOTUS definition.