The law that no one loved

EPA’s ‘Waters of the U.S.’ rule opposed by all sides

Wikimedia Commons/Geo Swan

On Oct. 9, the U.S. Court of Appeals for the Sixth Circuit issued a stay for the Clean Water Rule, which seeks to clarify protection of the country’s streams and wetlands under the Clean Water Act. The stay halts implementation of the regulation, also known as the Waters of the U.S. (WOTUS) rule, across the country. This ruling follows an earlier injunction by a district judge in North Dakota that prevented the implementation of the regulation in Colorado and 12 other litigating states, which claim the regulation is federal overreach into states’ authority.

The WOTUS rule seeks to clarify which types of bodies of water are protected under the Clean Water Act following two Supreme Court cases earlier this century that called into question the protection of streams and wetlands. The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, the two agencies that developed the rule, state that one in three Americans get their drinking water from streams, and both streams and wetlands are the foundations of clean water in the U.S.

The two agencies issued the final WOTUS ruling in June of 2015, despite earlier internal memos wherein the U.S. Army Corps of Engineers challenged changes made between the draft rule and final rule. “If the rule is promulgated as final without correcting those flaws it will be legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement,” one memo states.

As predicted, the final rule, which was to take effect Aug. 28, was immediately met with litigation from both sides of the political spectrum. Colorado Attorney General, Cynthia Coffman, joined other states in filing suit, which resulted in the August injunction. The ruling on Oct. 9 follows the previous ruling by halting the implementation of the regulation in all states until a federal judge can decide whether or not the rule is in fact federal overreach.

“The attorney general of Colorado and other states have believed that there needs to be clarification in the courts of what the EPA’s actual reach into a state’s natural resources is or should be,” says Roger Hudson, chief communications director for the Colorado Attorney General. “If WOTUS happens, we believe it violates the provision of the Clean Water Act and overreaches into the state of Colorado. The Attorney General’s assertion is that Coloradans should decide how to use and maintain and keep pristine the natural resources of Colorado, not a federal agency.”

Not only did states challenge the rule, but environmental and conservation groups filed lawsuit in July stating the WOTUS rule was too weak and could actually provide less protection than the original 1972 Clean Water Act.

Nonprofit organizations, including Waterkeeper’s Alliance and the Center for Biological Diversity, challenge the rule stating that it would have “adverse impacts” on the “use, enjoyment and preservation of the waters of the United States.” The organizations maintain the rule weakens protection of certain streams, wetlands and ponds that are either too far from larger streams and rivers, or too close to bodies of water used for agriculture and ranching.

“We have extreme concerns about the final rule that came out,” says Gary Wockner, executive director of both Save the Poudre and Save the Colorado organizations, and who agrees with the above-mentioned lawsuits. “The rule needs to be challenged and changed.”

Wockner says the new rule creates loopholes, specifically for ditches, that could make pollution from farms, ranching and oil and gas operations worse.

“In addition, mountain streams may not be protected if they’re not flowing all year round, and most of them aren’t,” he says.

Because the WOTUS rule was issued as final, the only recourse for both states and conservationists concerned with these issues is to challenge the regulation in the courts. Both Wockner and Hudson suspect this process could take several years, so until the litigation is resolved, the provisions of the Clean Water Act still apply throughout the country.

“The Clean Water Act still has some power in the state of Colorado. But even the original Clean Water Act had all sorts of exemptions, especially around industrial pollution, wastewater treatment plant pollution and farming especially. …” Wockner says. “So the rule was a major step forward in 1972, but we still have a long ways to go to get actual swimmable, fishable, drinkable water in our rivers and streams.”